WARNING

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

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Citation: R. v. Coulter, 2016 ONCA 704 Date: 2016-09-28 Docket: C58703

Before: Strathy C.J.O., Gillese and Pardu JJ.A.

Between:

Her Majesty the Queen Respondent

and

James Coulter Appellant

Counsel: Richard Litkowski, for the appellant Mary-Ellen Hurman, for the respondent

Heard: April 20, 2016

On appeal from the convictions entered on April 10, 2014, by Justice Neil L. Kozloff of the Ontario Court of Justice, sitting without a jury.

Gillese J.A.:

[1] This appeal against conviction is founded on s. 11(b) of the Canadian Charter of Rights and Freedoms.

[2] In the recent case of R. v. Jordan, 2016 SCC 27, a majority of the Supreme Court of Canada created a new framework to be applied where a breach of s. 11(b) is alleged. The new framework is applicable to any case that was in the justice system when Jordan was released. Consequently, this court must apply the new framework, with its transitional features, to resolve the appeal.

OVERVIEW

[3] In November of 2011, James Coulter (“Mr. Coulter” or the “appellant”) was arrested and charged with a number of child pornography offences. He was convicted of those offences almost 29 months later. He applied for a stay of proceedings, arguing that his rights under s. 11(b) of the Charter had been infringed (the “Application”). The trial judge assessed less than 2 of the 29 months as delay attributable to the Crown and limits on institutional resources. He dismissed the Application.

[4] Mr. Coulter brought an appeal to this court in which he contended that the trial judge erred in dismissing the Application. He raised two grounds of appeal: (1) that the trial judge incorrectly assessed much of the delay in the proceeding as neutral; and (2) that the trial judge failed to give sufficient weight to the prejudice that he suffered as a result of the delay. The appellant argued that once those errors were corrected, a balancing of the interests that s. 11(b) is designed to protect led to the conclusion that a stay should be ordered.

[5] The Crown accepted that some of the time that the trial judge had assessed as neutral was properly attributed to institutional or Crown delay. However, it argued that the delay was not unreasonable, given the nature of the case and the reasons for the delay. Accordingly, it submitted, the appeal should be dismissed.

[6] Oral argument on the appeal was heard on April 20, 2016. At that time, counsel agreed that this court should reserve its decision in this matter until after the Supreme Court of Canada had released its decision in R. v. Williamson, 2016 SCC 28, then under reserve. Williamson was released contemporaneously with Jordan and shortly after R. v. Vassell, 2016 SCC 26. After the release of those three Supreme Court decisions, counsel were invited to – and did – provide this court with written submissions on the impact of those decisions upon the resolution of this appeal (the “further written submissions”).

[7] Applying the new framework established in Jordan, I conclude that the appeal should be dismissed.

BACKGROUND IN BRIEF

[8] The appellant taught high school in Ontario and also lectured at an Ontario university. He was arrested on November 17, 2011, and charged the following day with five counts of accessing, attempting to access, and possessing child pornography.

[9] Certain items in Mr. Coulter’s home were seized, pursuant to a search warrant. An analysis of those items disclosed a collection of child pornography showing young boys engaged in sex acts with adult males. The following items were located:

• 34 stories containing child pornography;

• 110 child pornography movies on a laptop, including 5 that were downloaded from the Internet, 109 of which were accessible;

• 2 child pornography images, including an image of an adult male performing fellatio on a prepubescent boy; and

• a DVD containing 3 child pornography movies.

[10] The appellant made his first appearance in court the day following his arrest (i.e. November 18, 2011). The information was sworn that same day. After his first court appearance, the appellant appeared in set-date court a further six times between November 2011 and the end of March 2012.

[11] Between April and July 2012, judicial pre-trials took place on three occasions: April 10, June 8 and July 16. The matter appeared likely to resolve. However, the officer in charge – Detective Constable Dayna Boyko – continued her investigations until mid-April of 2012. These investigations led to a further charge of making child pornography being laid on June 8, 2012.

[12] Apart from the judicial pre-trials, the matter was adjourned on July 24, 2012, to allow for further disclosure and resolution discussions. The matter proceeded on the path of resolution until August 7, 2012, when the appellant informed the court that he had decided to go to trial. Another judicial pre-trial was scheduled for August 27, 2012, to make a trial time estimate.

[13] At the August 27 appearance, defence counsel indicated that he would be bringing the Application. The Application was scheduled to be heard on March 20, 2013. Trial dates were set for June 5 and 6, 2013. The matter was adjourned to October 2, 2012, for the appellant to make his election for trial.

[14] On October 2, 2012, the appellant elected trial in the Ontario Court of Justice and the matter was remanded to March 20, 2013, when the Application was scheduled to be heard.

[15] A number of events caused both the Application and the trial to be rescheduled more than once.

[16] The Application was eventually heard over three days: March 28, May 8 and May 17, 2013.

[17] The trial did not take place on June 5 and 6, 2013, as scheduled. It was moved first to August 9, 2013, then to January 27, 2014, and finally to February 14, 2014. The only evidence led at trial on February 14, 2014, was an Agreed Statement of Facts.

[18] The trial judge acquitted the appellant of the charge of making child pornography but convicted him of the other counts (attempting to access, accessing and possessing child pornography). He stayed two of the five counts pursuant to Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[19] On April 10, 2014, the trial judge dismissed the Application. He then sentenced the appellant to six months in custody, concurrent on each count, followed by three years of probation.

THE RULING ON THE APPLICATION

[20] The trial judge decided the Application based on the then-governing legal principles in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. He found that 874 days had elapsed between the swearing of the information on November 18, 2011, and the completion of trial on April 10, 2014.

[21] The trial judge began by reviewing the events leading up to the trial, relying on the transcripts from the appellant’s court appearances, affidavit evidence about scheduling matters, and affidavit and viva voce evidence from the appellant and Detective Constable Boyko. The appellant’s evidence was primarily about the prejudice caused by the delay in the proceeding. Detective Constable Boyko’s evidence focused on the specifics of her investigation, including the amount of material that had to be reviewed, the nature of that review, and the time required to conduct the review.

A. The Time Period Assessments

[22] The trial judge assessed the 874 days that elapsed from the time the first information was sworn to the conclusion of trial as follows:

• November 18, 2011 to April 16, 2012 – 150 days – inherent delay required by the intake process. The trial judge made this assessment based on the specifics of the investigation, including the substantial amount of material seized and the time it took the investigating officer to analyze it. He found that the investigation was “thorough, appropriate, and for the most part timely.”

• April 16, 2012 (when Detective Constable Boyko completed her investigation) to June 8, 2012 (when the final charge was laid) – 53 days of delay due to the Crown.

• June 8, 2012 to July 16, 2012 (express defence waiver); July 16, 2012 to August 7, 2012 (implied defence waiver); and February 14, 2014 to April 10, 2014 (express defence waiver) – together, 116 days of delay waived by the defence.

• August 7, 2012 to August 27, 2012 – 20 days of delay for intake inherent time requirements.

• August 27, 2012 to February 14, 2014 – 535 days – neutral.

[23] The trial judge acknowledged that the delay he attributed to limits on institutional resources and the actions of the Crown totalled less than two months. However, he stated, even if he had wrongly assessed some of the delay as neutral, rather than due to limits on institutional resources, he would still find that the relevant portion of the delay fell well within the applicable guidelines.

B. Prejudice to the Appellant

[24] The trial judge found that the most significant effect of the charges on the appellant related to his occupation as a school teacher. The appellant’s employment as a school teacher was suspended when he was charged and, as a result of the charges, it was unlikely that he would ever be able to return to his chosen profession.

[25] The trial judge stated that although he had “no doubt” that the appellant had suffered some prejudice as a result of the delay between his arrest and the conclusion of his trial, the prejudice he suffered was largely due to the nature of the charges he faced and not from delay in the proceedings.

[26] The trial judge also noted that the inferred prejudice associated with the stress of living with unresolved criminal charges strengthens with each day that passes between arrest and trial. He found that the conditions of the appellant’s release from custody – in particular, the requirement that he reside in comparative discomfort with his surety and the prohibition against use of the computer – were evidence of actual prejudice.

[27] The trial judge found some evidence of an effort to ameliorate the release terms because defence counsel had approached the Crown about the matter. However, he found no evidence of efforts by the appellant to expedite proceedings once the trial dates were set.

[28] He noted that the trial co-ordinator had informed defence counsel on December 6, 2012, that the Application could not proceed on the scheduled date of March 20, 2013. Subsequently, on January 7, 2013, the trial co-ordinator advised the defence to bring the matter forward to secure another date for the Application. Then, on February 12, 2013, the trial co-ordinator advised defence counsel that earlier dates had become available for trial. Defence counsel did not avail himself of the earlier trial dates, despite his apparent availability and the offer of the Crown to accept short service of materials. The trial judge also noted that defence counsel was otherwise engaged in a different trial in Superior Court on the original trial dates.

[29] The trial judge stated that the defence conduct, including action not taken, informed his assessment of the weight to be accorded to the prejudice suffered by the appellant and the balancing of the various factors.

C. Conclusion on the Application

[30] The trial judge concluded that, given the length of the delay he had attributed to the Crown and limitations on institutional resources, the actual prejudice to the appellant could not be said to outweigh society’s interest in the trial on the merits. Accordingly, the trial judge found that there was no breach of the appellant’s right to have a trial within a reasonable time.

THE LEGAL FRAMEWORK FOLLOWING JORDAN

[31] The majority in Jordan stated that the Morin framework for s. 11(b) applications had given rise to both doctrinal and practical problems that contributed to a culture of delay and complacency. Consequently, it established a new framework to be applied where a breach of s. 11(b) is alleged.

[32] At the heart of the new framework lies a ceiling, beyond which delay is presumptively unreasonable. The presumptive ceiling is 18 months for cases going to trial in the provincial court and 30 months for cases going to trial in the superior court or cases going to trial in the provincial court after a preliminary inquiry (Jordan, para. 46).

[33] A summary of the new framework is set out below, with the key elements highlighted in bold. An explanation of how each key element of the new framework is to be determined follows. See also this court’s judgment in R. v. Manasseri, 2016 ONCA 703, released contemporaneously with this judgment. The explanation of the new framework in these judgments is consistent.

A. The New Framework Summarized

[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

[35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

[37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

[38] Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

[39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

[41] The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).

B. Key Elements in the New Framework

(1) Defence Delay

[42] Defence delay has two components: (1) that arising from defence waiver; and (2) delay caused solely by the conduct of the defence (“defence-caused delay”) (Jordan, paras. 61 and 63).

[43] Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights (Jordan, para. 61).

[44] Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64).

(2) Exceptional Circumstances

[45] If the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.

[46] Exceptional circumstances lie outside the Crown’s control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69).

[47] An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a Net Delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused (Jordan, para. 81).

[48] The list of exceptional circumstances is not closed but, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

(a) Discrete Events

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

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

(b) Particularly Complex Cases

[51] Particularly complex cases are cases that, because of the nature of the evidence or issues (or both), require an inordinate amount of trial or preparation time such that the delay is justified (Jordan, para. 77). The seriousness or gravity of the offence cannot be relied on to establish that the case is particularly complex (Jordan, para. 81).

[52] Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue. No further analysis is required (Jordan, para. 80).

(3) Remaining Delay is Below the Presumptive Ceiling

[53] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings (“defence initiative”); and (2) the case took markedly longer than it reasonably should have. Absent both of these two factors, the s. 11(b) application must fail (Jordan, para. 82).

[54] Stays beneath the presumptive ceiling should be granted only in clear cases (Jordan, para. 83).

(4) Transitional Cases

[55] The new framework applies to cases currently in the system (Jordan, para. 94). The analysis of transitional cases differs depending upon whether the Remaining Delay exceeds or falls below the presumptive ceiling.

(a) Remaining Delay Exceeds the Presumptive Ceiling

[56] Where the Remaining Delay exceeds the presumptive ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to July 8, 2016, the date that Jordan was released. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case took is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and to the fact that the parties’ behaviour cannot be judged strictly against a standard of which they had no notice. Considerations of prejudice and the seriousness of the offence can inform whether the parties’ reliance on the previous state of the law was reasonable (Jordan, para. 96).

[57] Moreover, the Remaining Delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent and notorious institutional delays should account for this reality, as Crown counsel’s behaviour is constrained by systemic delay issues (Jordan, para. 97).

(b) Remaining Delay Falls Below the Presumptive Ceiling

[58] For cases currently in the system in which the Remaining Delay falls below the ceiling, the two things that the defence must establish (i.e. defence initiative and whether the time the case took markedly exceeds what was reasonably required) must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law (Jordan, para. 99).

[59] Further, institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework will be a component of the reasonable time requirements (Jordan, at para. 100).

THE ISSUES

[60] Jordan fundamentally changed the way that the courts are to decide s. 11(b) applications. Because it applies to cases currently in the system, it also fundamentally changed the issues that must be resolved on this appeal. In light of Jordan and the parties’ further written submissions, in my view, those issues are:

1. What is the period of defence delay?

2. What delay is attributable to exceptional circumstances?

3. How does the framework apply to this transitional case?

FOUNDATIONAL POINTS

[61] Before analyzing the issues, two foundational points must be made.

[62] First, the period of total delay in this case runs from November 18, 2011, when the information containing the first five counts was sworn, to April 10, 2014, when the trial concluded. Thus, the total delay is 29 months.

[63] Second, as the case was tried in provincial court and there was no preliminary inquiry, the presumptive ceiling is 18 months.

ISSUE #1 WHAT IS THE PERIOD OF DEFENCE DELAY?

[64] In my view, 6 months are properly assessed as defence delay: the defence expressly waived 3 months of delay and an additional 3 months of delay was caused solely by the conduct of the defence.

A. Waiver

[65] I see no basis on which to interfere with the trial judge’s findings that the defence expressly waived 3 months of delay, comprised of two periods:

1. June 8 – July 16, 2012 (1 month); and

2. February 14 – April 10, 2014 (2 months).

(1) June 8 – July 16, 2012

[66] On June 8, 2012, the appellant appeared by way of designation for a continuing judicial pre-trial conference. The Crown was ready to set a trial date but noted that the matter was likely headed towards a resolution. The Crown explained to the court that the defence had requested an adjournment, pending release of an anticipated Ontario Superior Court of Justice decision that could, in the defence’s view, affect resolution discussions. The defence agreed to continue the judicial pre-trial on July 16, 2012.

[67] There is some ambiguity in the appellant’s position on how to treat this period. In his factum, at para. 28, he acknowledges that this period “can fairly be said to have been waived by the defence”. However, in the summary table in his factum, he classified it as neutral time. The appellant did not address the issue of how much time should be treated as defence waiver in his further written submissions.

[68] The trial judge found that the defence had expressly waived this period. In the circumstances, including the appellant’s concession at para. 28 of his factum, I see no basis on which to interfere with the trial judge’s finding.

(2) February 14 – April 10, 2014

[69] On February 14, 2014, the parties filed an Agreed Statement of Facts. The trial judge heard submissions on the allegation of making child pornography and found the appellant not guilty on that count. The trial judge convicted the appellant on the first five counts.

[70] The defence then asked that the court apply the principle in Kienapple. The matter was adjourned to allow the Crown to consider its position. The trial judge asked if the parties had agreed to a date. Defence counsel responded with the agreed-on date of April 10, 2014, and said that “11(b) from today’s date until that date is waived.” (emphasis added)

[71] Again, I see no basis for interfering with the trial judge’s finding that the defence expressly waived this period.

B. Defence-Caused Delay

[72] The 3 months of delay in this category is comprised of three periods:

1. August 22 – 27, 2012 (1 week);

2. May 17 – June 5, 2013 (3 weeks); and

3. June 5 – August 9, 2013 (2 months).

(1) August 22 – 27, 2012

[73] On August 7, 2012, the appellant appeared to schedule a further judicial pre-trial conference to arrive at an estimate for trial duration. The court and the Crown were ready to proceed on August 22, 2012, but counsel for the defence was unavailable until August 27, 2012. In accordance with para. 64 of Jordan, the defence directly caused the delay as the court and the Crown were ready to proceed, but the defence was not.

(2) May 17 – June 5, 2013

[74] The parties are agreed that this period is defence-caused delay, in accordance with Jordan. I accept this.

[75] On August 27, 2012, the parties set trial dates of June 5 and 6, 2013. The trial judge found that the defence did not put earlier trial dates on the record (although he had indicated earlier dates for the s. 11(b) application, scheduled for March 20, 2013). On February 12, 2013, the trial coordinator advised the parties that earlier dates had opened up and the two-day trial could be rescheduled for various two-day periods in February, March and April, in addition to May 10, 17, 29 and 30. Although the defence estimated that it would be prepared for trial by May, it declined to accept dates earlier than June. Defence counsel offered to keep the original June trial dates and to take responsibility for the delay between the May dates and the June dates already set for trial.

(3) June 5 – August 9, 2013

[76] Both parties submit that this period is defence-caused delay within the meaning of Jordan. Again, I accept this and for the same reason: both the court and the Crown were ready to proceed but defence counsel was unavailable.

[77] On June 5, 2013, the defence appeared by way of an agent to explain that defence counsel was occupied with a jury trial and was not available to conduct the trial as scheduled. The defence counsel gave the Crown one day’s notice of the conflict by way of e-mail. Knowing that the trial would not proceed, the Crown did not arrange for its witnesses to attend court on June 5, 2013. The agent for the defence agreed that the Crown would have been ready to conduct the trial but for the e-mail warning of defence counsel’s scheduling conflict. The court directed the parties to the trial coordinator to reschedule the trial, resulting in the date of August 9, 2013.

ISSUE #2 WHAT DELAY IS ATTRIBUTABLE TO EXCEPTIONAL CIRCUMSTANCES?

A. Introduction

[78] Under the Jordan framework, the 6 months of defence delay must be subtracted from the 29-month period of total delay. Accordingly, the Net Delay is 23 months.

[79] Because the Net Delay exceeds the 18-month presumptive ceiling, it is presumptively unreasonable. It falls to the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.

[80] It will be recalled that, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. In this case, as I explain below, I need only analyze the category of discrete events.

B. Discrete Events

[81] The trial was scheduled to continue on August 9, 2013. Unfortunately, Crown counsel was involved in a car accident that very morning. The trial had to be rescheduled, resulting in the date of January 27, 2014. Further, as the trial judge noted, defence counsel advised the court that the defence would not have been ready to proceed that day.

[82] At para. 72 of Jordan, a medical emergency on the part of counsel is offered as one example of a discrete event that would qualify as an exceptional circumstance. Thus, this event clearly constitutes a discrete event.

[83] In accordance with para. 75 of Jordan, the court must consider whether any portion of the delay caused by a discrete event could have been reasonably mitigated by the Crown or system. If so, that portion of the delay caused by the discrete event cannot be subtracted.

[84] Counsel for both parties agree that the period from August 9, 2013, to January 27, 2014, is a discrete event within the meaning of Jordan. Neither counsel suggests that the Crown or system could reasonably have mitigated any portion of the delay. I agree, with the result that 6 months of delay was caused by the discrete event.

C. Particularly Complex Cases

[85] Jordan dictates that delay arising from discrete events is to be subtracted from the Net Delay for the purpose of determining whether the presumptive ceiling has been reached. As explained above, the Net Delay is 23 months. After subtracting 6 months of delay attributable to the discrete event, the Remaining Delay of 17 months falls below the 18-month presumptive ceiling.

[86] The majority in Jordan wrote that, for cases in which the Remaining Delay falls above the presumptive ceiling, it is open to the Crown to prove that the case was particularly complex such that the trial occurred within a reasonable time. In this case, as the Remaining Delay falls below the presumptive ceiling, it is unnecessary to consider whether this was a particularly complex case within the meaning given to that phrase by Jordan.

ISSUE #3 HOW DOES THE FRAMEWORK APPLY TO THIS TRANSITIONAL CASE?

A. Introduction

[87] Because the Remaining Delay of 17 months falls below the presumptive ceiling, the appellant bears the onus of showing that the delay is unreasonable (Jordan, at para. 82). To show that the delay is unreasonable, the appellant must establish two things: (1) that the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) that the case took markedly longer than it reasonably should have (Jordan, para. 82). The court must also be mindful that stays for cases in which the delay falls below the presumptive ceiling are rare and limited to clear cases (Jordan, para. 48).

[88] As the charges against the appellant were brought prior to the release of the Supreme Court decision in Jordan, this is a transitional case (Jordan, para. 94). Thus, in determining whether the appellant has met his onus, this court must apply the new framework contextually and flexibly (Jordan, para. 94).

[89] While there are a variety of reasons for why the framework must be applied contextually and flexibly to transitional cases, Jordan stresses two in particular. First, the administration of justice cannot tolerate a recurrence of what transpired after the release of R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 when a myriad of charges were stayed in Ontario as a result of the abrupt change in the law (Jordan, paras. 92 and 94). Second, it is not fair to strictly judge participants in the justice system against standards of which they had no notice. Thus, the court must remain sensitive to the parties’ reliance on the previous state of the law (Jordan, paras. 94 and 99).

B. The Appellant’s Submissions

[90] In his further written submissions, the appellant took the position that even after defence delay and delay caused by the discrete event were subtracted from the total delay, the Remaining Delay still exceeded the 18-month presumptive ceiling. (I note that the appellant’s position is largely attributable to the fact that in his further written submissions he did not address delay due to defence waiver.) Consequently, the appellant did not make direct submissions on the basis that the Remaining Delay falls below the presumptive ceiling.

[91] However, in his further written submissions, the appellant did submit that the following factors are relevant to a consideration of the transition period: (1) the appellant attempted to move the case along by retaining counsel immediately and by trying to narrow the issues; (2) seven months for disclosure of the forensic report was not reasonable; (3) the Crown’s decision to add a “making” pornography charge, some seven months after the original charges were laid, delayed the progress of the case; and (4) the appellant experienced specific and real prejudice that the trial judge failed to take into account.

C. Analysis

[92] A consideration of these factors does not assist the appellant in rebutting the presumption that the Remaining Delay, which falls below the presumptive ceiling, was reasonable. The trial judge made findings against the defence on each of these factors and I see no basis on which to interfere with those findings.

[93] The appellant’s first factor is that the defence took meaningful steps to expedite the proceedings. As the majority wrote in Jordan, at para. 99, for a transitional case in which the Remaining Delay falls below the presumptive ceiling, the criteria of defence initiative, although relevant, is not dispositive of the s. 11(b) application.

[94] However, while the trial judge found some evidence that the defence attempted to ameliorate the appellant’s release terms – defence counsel had approached the Crown about the matter – he found no evidence of defence efforts to expedite proceedings once the trial dates were set.

[95] In his ruling on the Application, the trial judge explained that the trial co-ordinator informed defence counsel on December 6, 2012, that the Application could not proceed on the scheduled date of March 20, 2013. Then, on January 7, 2013, the trial co-ordinator told the defence to bring the matter forward to secure another date for the Application. And, on February 12, 2013, the trial co-ordinator advised defence counsel that earlier dates had become available for trial. Defence counsel did not avail himself of the earlier dates, despite his apparent availability and the Crown’s offer to accept short service of materials.

[96] The trial judge’s findings on the matter of defence initiative are fully justified on the record. I have considered them on a contextual basis that is sensitive to the previous state of the law and cannot conclude that the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings.

[97] The appellant’s second and third factors are related. They, too, fail on the findings of the trial judge.

[98] The trial judge found that, although the intake period of approximately five months was lengthy, it was not unreasonable. He made that finding based on: the specifics of the investigation, including the substantial amount of material seized; the lengthy period of necessary post-charge investigation and analysis; and his determination that Detective Constable Boyko’s investigation was thorough, appropriate and largely timely.

[99] The trial judge expressly considered that the appellant had promptly retained counsel and had been diligent in pursuing disclosure. He also acknowledged that delay occurred because of the Crown’s ongoing disclosure obligations (as the investigation continued) and the need for numerous judicial pre-trial conferences.

[100] But, as the trial judge found, the period between the appellant’s arrest and the first judicial pre-trial was insufficient to allow Detective Constable Boyko to complete her investigation. In his view, the detective needed time to determine whether there was evidence to support the “making” charge. On April 11, 2012, Detective Constable Boyko found, on one DVD among 439 discs seized from the appellant’s home, the child pornography that led to the “making” charge. She concluded her investigation, having reviewed all of the discs, on April 16, 2012, about five months after the appellant’s arrest.

[101] Although the trial judge found Crown delay of almost two months in relation to the laying of the new charge, his overall finding was that the investigation was timely.

[102] Given the findings of the trial judge, the appellant has not persuaded me to accept as valid either his second or third factor.

[103] Similarly, the appellant’s fourth factor – that the appellant experienced specific and real prejudice that the trial judge failed to take into account – fails on the findings of the trial judge.

[104] The trial judge found that the appellant experienced minimal prejudice as a result of the delay. The prejudice that he did suffer arose from: (1) the appellant’s restrictive bail conditions, requiring him to live with his father in Collingwood while maintaining his own home in Toronto and commuting to Toronto for therapy; and (2) the condition barring the appellant from accessing the Internet, which had restricted his efforts to find new employment. However, the trial judge found that the vast bulk of the prejudice to the appellant came from the nature of the offences and its impact on his occupation as a teacher. This is not prejudice flowing from delay.

D. Conclusion

[105] The majority in Jordan cautions that “given the level of institutional delay tolerated under the previous approach, a stay of proceedings [where the Remaining Delay is] below the ceiling will be even more difficult to obtain for cases currently in the system” (para. 101). It also warns that the contextual approach to Transitional Cases is necessary to ensure that the post-Askov situation, where tens of thousands of cases were stayed in Ontario alone, is not repeated (Jordan, paras. 92-94).

[106] The Remaining Delay of 17 months is below the presumptive ceiling. The figure of 17 months was arrived at without a consideration for the particular complexity of the case (if any) or for the level of tolerance for institutional delay in the jurisdiction in which this case was tried. The trial judge’s findings – reviewed with due recognition for the parties’ reliance on the then-existing state of the law – do not assist the appellant.

[107] In the circumstances, as informed by the cautions stressed by the majority and discussed above, I have no difficulty in concluding that the appellant has not rebutted the presumption that the Remaining Delay was reasonable.

DISPOSITION

[108] For these reasons, I would dismiss the appeal.

Released: September 28, 2016 (“G.R.S.”)

“E.E. Gillese J.A.”

“I agree. G.R. Strathy C.J.O.”

“I agree. G. Pardu J.A.”