Her Majesty the Queen v. Picard

[Indexed as: R. v. Picard]

Ontario Reports

Court of Appeal for Ontario

Doherty, Rouleau and Pepall JJ.A.

September 7, 2017

137 O.R. (3d) 401 | 2017 ONCA 692

Case Summary

Charter of Rights and Freedoms — Trial within reasonable time — Accused applying for stay of proceedings for unreasonable delay less than one week before start of murder trial and several months after release of R. v. Jordan — Net delay being 46 months — Exceptional circumstance reducing delay to 40 months — Trial judge finding that case was not particularly complex when it reached trial and that transitional exceptional circumstance did not apply as Crown and institutional delay of 26 months was unreasonable under Morin framework — Crown's appeal from stay of proceedings allowed — Trial judge failing to consider complexity of early stages of case and failing to take that complexity into account in considering transitional exceptional circumstance — Crown and institutional delay being 14 months rather than 26 months — Delay above presumptive 30-month ceiling justified by transitional exceptional circumstance.

The accused was charged with first degree murder in December 2012. The Crown's case was built on a complex analysis of data from 53 cellphones, including more than 25,000 text messages, GPS data, call records and Google Earth files. Expert evidence was going to be needed to interpret the data for the jury. The disclosure was voluminous and took considerable time to complete. The accused was detained in custody following a bail hearing. After being denied bail, he dismissed his counsel. Retaining new counsel took six months, and when new counsel was hired, it took him about two months to review the disclosure and become sufficiently knowledgeable about the case to set the preliminary inquiry dates. The Crown was not prepared to accept the first available trial dates when both the court and the defence were available, which were in February 2016, as the two senior Crowns assigned to the case were not available on those dates. Both Crowns were assigned to other complex first degree murder trials, one of which was the third trial in relation to a murder that took place in 2010. Jury trials are not scheduled to commence in the summer so the earliest date when the court and the Crowns were available was September 2016, so pre-trial motions were set to commence on September 6, 2016 with November 7 set as the first day of an anticipated six-week jury trial. In July 2015, the defence moved unsuccessfully to expedite the proceeding. An officer testified about the large amount of evidence involved in the case, particularly a huge number of text messages, and the relationship that the Crowns had built with the family of the deceased. A new prosecutor would have to redo the work the assigned prosecutors had already done in familiarizing themselves with the evidence. The motion judge accepted the Crown's argument that moving the trial forward, which would have the effect of removing at least one assigned Crown, would interfere with prosecutorial discretion. The judge heard pre-trial motions in September and October. On November 1, 2016, less than a week before the start of the trial and three and one-half months following the release of the decision of the Supreme Court of Canada in R. v. Jordan, the accused informed the Crown of his intention to bring an application under ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms for a stay of proceedings for unreasonable delay. Despite its lateness, the trial judge heard the application and granted a stay. The total delay was 48 months. The trial judge found that the six months it took the accused to retain new counsel constituted an exceptional circumstance, reducing the delay to 42 months, and that the delay was further reduced to 40 months by two months of defence delay (resulting from the time it took new defence counsel to receive and review disclosure). The net delay exceeded the 30-month ceiling and was presumptively unreasonable. The trial judge found that the delay was not justified by the complexity of the case as only a fraction of the voluminous disclosure would be introduced into evidence at trial and the legal issues were not complex or novel. She then turned to whether the transitional exceptional circumstance applied. She found that, of the net delay of 40 months, 14 months was attributable to inherent time requirements, 19 months was institutional delay, and seven months was Crown delay (arising from the Crown's decision to accommodate the schedules of the two assigned senior Crowns). She found that the total institutional and Crown delay of 26 months was unreasonable under the Morin framework and concluded that the delay was not justified by the transitional exceptional circumstance. The Crown appealed.

Held, the appeal should be allowed.

The trial judge did not err in hearing the s. 11(b) application despite its lateness, as the Crown was not prejudiced by the short notice.

The issue of complexity arises in two places in the Jordan analysis: first, complexity may amount to an exceptional circumstance that can be used to rebut the presumption that a delay greater than the presumptive ceiling is unreasonable; second, when considering whether there is a transitional exceptional circumstance (for cases arising before the decision in Jordan). The trial judge committed two errors in her consideration of the complexity of the case. First, in assessing whether there was an exceptional circumstance, she focused her complexity analysis on how the case would present at trial, rather than considering the complexity more broadly over the course of the entire proceeding. Hence, even though the scope of the evidence may have been narrowed by the time of the trial, the voluminous nature of the disclosure may result in finding that the trial is viewed as a whole can be classified as complex. Second, she failed to consider the complexity of the case in her analysis of the transitional exceptional circumstance. However, those errors had little impact on the outcome of the appeal.

In considering whether the transitional exceptional circumstance applied, the trial judge overstated the institutional delay, which amounted to only seven months, not 19. The institutional delay was well within the Morin guidelines and remained within the guidelines even when the seven months of Crown delay were added. The Crown's decision to delay the trial to accommodate the schedules of the two assigned Crowns was a serious concern. After Jordan, such a decision would weigh heavily against the Crown and might in fact be determinative as to whether a stay should issue. However, Jordan had not been released when the motion to expedite was heard, and on a proper analysis of the delay in the Ontario Court of Justice, only four months of institutional delay had accrued by that point. Even with the addition of seven months of Crown delay, the Crown could reasonably conclude that under Morin, a trial in the fall of 2016 would not violate the accused's s. 11(b) rights. Under the Morin regime, the seriousness of the offence and its moderate complexity were also factors that weighed against a stay. When considering a transitional case, the seriousness of the offence remains a significant factor. Applying the Morin framework, a court would not have concluded that the overall delay was unreasonable. There was no opportunity for the parties to attempt to minimize the delay after the release of Jordan. There were only a few months between its release and the start of trial. The delay above the presumptive Jordan ceiling was justified by the transitional exceptional circumstance.

Authorities

Applied:

• R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27
• R. v. Morin, [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25
• R. v. Cody, [2017] S.C.J. No. 31, 2017 SCC 31
• R. v. Godin, [2009] 2 S.C.R. 3, [2009] S.C.J. No. 26, 2009 SCC 26

Considered:

• R. v. Boateng, (2015), 128 O.R. (3d) 372, [2015] O.J. No. 6449, 2015 ONCA 857
• R. v. Coulter, (2016), 133 O.R. (3d) 433, [2016] O.J. No. 5005, 2016 ONCA 704
• R. v. Khan, [2011] O.J. No. 937, 2011 ONCA 173
• R. v. M. (N.N.), [2006] O.J. No. 1802
• R. v. Manasseri, (2016), 132 O.R. (3d) 401, [2016] O.J. No. 5004, 2016 ONCA 703
• R. v. Palmer, [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126
• R. v. Pyrek, [2017] O.J. No. 3024, 2017 ONCA 476
• R. v. Ralph, [2014] O.J. No. 13, 2014 ONCA 3
• R. v. Schertzer, [2009] O.J. No. 4425, 2009 ONCA 742
• R. v. Tran, [2012] O.J. No. 83, 2012 ONCA 18
• R. v. W. (A.J.), [2009] O.J. No. 3814, 2009 ONCA 661
• R. v. Williamson, [2016] 1 S.C.R. 741, [2016] S.C.J. No. 28, 2016 SCC 28

Statutes referred to:

• Canadian Charter of Rights and Freedoms, s. 11(b)

Proceedings

APPEAL by the Crown from the order of Parfett J. staying the proceedings against the respondent, [2016] O.J. No. 5845, 2016 ONSC 7061, 368 C.R.R. (2d) 64 (S.C.J.).

Counsel:

• Roger Pinnock and Tracy Kozlowski, for appellant
• Howard L. Krongold, for respondent

Judgment

The judgment of the court was delivered by ROULEAU J.A.:

A. Introduction

[1] Adam Picard was charged with the first degree murder of Fouad Nayel. Before the start of the trial, and following the release of the Supreme Court of Canada's decision in R. v. Jordan, the trial judge stayed the charge for unreasonable delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms.

[2] The Crown appeals on the basis that it was prejudiced by the lateness of the s. 11(b) application, and that the trial judge erred in her attribution of defence-caused delay, her assessment of the complexity of the case and her application of the transitional exceptional circumstance under Jordan.

[3] I would allow the appeal. In my view, the trial judge erred in her application of the transitional exceptional circumstance under Jordan. The charge in this case pre-dated Jordan and was a few months from trial when Jordan was released.

[4] I acknowledge that this case exhibits some of the delay concerns that Jordan sought to address. Had the charges been laid and prosecuted under the Jordan regime from the outset, the overall time needed to bring the case to trial combined with the Crown's refusal to agree to a trial on the first available dates in the Superior Court would, in my view, have resulted in a stay.

[5] The court in Jordan recognized, however, that the new framework it created should provide for a transition. Where, as here, the matter was prosecuted almost entirely prior to Jordan's release and the delays would not, under the framework that was in place prior to Jordan, have resulted in a stay, the parties' behaviour should not be "judged strictly, against a standard of which they had no notice": Jordan, at para. 96. Reasonable reliance on the law as it previously existed constitutes an exceptional circumstance in this transitional period.

B. Facts

The history of the proceeding

[6] On December 12, 2012, Mr. Picard was charged with the first degree murder of Mr. Nayel, whose death is believed to have occurred on June 17, 2012. Mr. Picard and Mr. Nayel were alleged to have been drug-trafficking associates. Mr. Picard was described as a "pound-level dealer" -- i.e., he was trafficking in pounds of drugs.

[7] The Crown's theory was that after some money went missing, Mr. Picard lured Mr. Nayel to a secluded area under false pretenses and shot him with a gun he had purchased for that purpose. Mr. Picard's anticipated defence at trial was that he was present at the murder, but that a third party had committed it.

[8] The Crown's case was circumstantial. It was built on a complex analysis of data from 53 cellphones, including more than 25,000 text messages, GPS data, call records and Google Earth files as to the location of the phones' owners during the relevant period. All of this data had to be interpreted by experts in the field.

[9] The Crown also relied on admissions made by Mr. Picard and anticipated calling some 43 witnesses at trial.

[10] The disclosure required was voluminous and took considerable time to complete. Following disclosure, a four-day bail hearing was held, after which Mr. Picard was detained in custody pending trial.

[11] After being denied bail, Mr. Picard dismissed his counsel. Retaining new counsel took six months because the first lawyers Mr. Picard contacted discovered that they had conflicts preventing them from acting for him.

[12] When new counsel was hired, it took him approximately two months to review the disclosure and become sufficiently knowledgeable about the case to set the preliminary inquiry dates. The preliminary inquiry proceeded for some five weeks, following which Mr. Picard was committed to trial for first degree murder.

[13] In May 2015, the parties appeared in court to set the dates for trial. The Crown was not prepared to accept the first dates when both the defence and the court were available, which were in February 2016. The two senior Crowns assigned to the case were not available until the end of June and insisted on scheduling the trial on dates when both were available.

[14] Because jury trials are not scheduled during the summer months, the parties and the court scheduled the trial to start in September 2016, some seven months later than the proposed February dates. Pre-trial motions, anticipated to last nine days, were scheduled to commence on September 6, 2016, followed by a six-week jury trial commencing on November 7, 2016.

The motion to expedite the trial

[15] Following the scheduling of the trial dates, Mr. Picard brought a motion to expedite the proceeding. The Crown opposed the motion, arguing that if the trial were scheduled before July 2016, this would have the effect of removing at least one assigned Crown, thereby interfering with prosecutorial discretion.

[16] The motion was heard on August 6 and 7, 2015. The Crown called Det. Lori Birmingham as a witness. Her evidence supported the Crown's decision not to remove either of the Crown attorneys. She described the process of bringing the Crown attorneys up to speed on the large amount of evidence in the case, including an "overwhelming" quantity of text messages. She also commented on the efforts made to build a relationship with the family of the victim, including meetings between the Crown attorneys and family members. The suggestion was that much of this work would need to be done again if new Crown attorneys were assigned to the matter.

[17] The Crown explained neither Crown attorney assigned to the case was available on the earlier dates because they were assigned to other complex and serious first degree murder prosecutions, one of which was the third trial in relation to a murder that took place in 2010. It reviewed its evidence against Mr. Picard in some detail, emphasizing the complexity of the case and the detailed familiarity required to prosecute it.

[18] In response, defence counsel suggested that, as many of the relevant facts could be the subject of admissions at trial, this evidence would be unnecessary and the case would not be complex. Defence counsel also argued that, while this was not a s. 11(b) application, the decision should nonetheless be informed by the right to a trial within a reasonable time.

[19] The Crown responded that the defence could bring a s. 11(b) application if it believed the right had been infringed and that, in any event, there was not enough evidence before the court to determine whether such an application would succeed.

[20] The motion was dismissed. In his reasons, the motion judge held that the effect of granting the motion would be to override the Attorney General's discretion to appoint counsel to carry out the prosecution. The motion judge went on to explain:

The Crown Attorneys have had carriage of the prosecution of a serious and relatively complex murder trial since the beginning. The Crown Attorneys have legitimate reasons for their unavailability to proceed with this trial as they are currently assigned to other complex first degree murder trials between February 1, 2016 and September 1, 2016.

[21] Following this disposition, the Crown and defence worked towards agreeing on various admissions and streamlining the presentation of the case.

[22] In September 2016 and, following some delay, in October, the trial judge heard and disposed of the pre-trial motions.

The s. 11(b) application

[23] On November 1, 2016, less than a week before the start of the trial, Mr. Picard informed the Crown of his intention to bring a s. 11(b) application. Mr. Picard relied on the recently released decision in Jordan to argue that a stay was necessary.

[24] Despite its lateness, the trial judge heard the application on November 10 and granted a stay on November 15, 2016.

[25] While I will discuss Jordan in more detail below, I will briefly describe the new framework as context for understanding the trial judge's reasons on the s. 11(b) application.

[26] In brief, under Jordan a delay from the date of the charge to the actual or anticipated end of trial in Superior Court (minus defence delay) is presumptively unreasonable if it exceeds 30 months. To rebut this presumption, the Crown must establish "exceptional circumstances". Exceptional circumstances generally fall into two categories: (1) discrete events, and (2) particular complexity arising from the evidence or the issues. The Crown may also rely on a "transitional exceptional circumstance" for cases that were already in the system pre-Jordan. A transitional exceptional circumstance will apply if the Crown can establish that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed.

[27] Applying the Jordan framework in this case, the trial judge began by noting that the delay from the laying of the charge to the anticipated end of the trial was 48 months. She then found that none of the delay had been waived by Mr. Picard and she rejected the Crown's claim that the seven months from the date of the charge to the dates of the bail hearing should be deducted as defence delay.

[28] She agreed with the Crown that the six months it took Mr. Picard to retain new counsel following the dismissal of the counsel who had represented him at the bail hearing constituted an exceptional circumstance under the Jordan framework. As a result, she agreed that this time period should be deducted from the total delay. She also agreed with both counsels' submission that the two months it took new counsel to receive and review disclosure was duplicative and should be characterized as defence conduct. That time should therefore also be deducted from the total delay.

[29] This brought the delay down to 40 months, still well above the Jordan presumptive ceiling of 30 months. The trial judge then turned to the issue of complexity. She listed the factors supporting the Crown's submission that the case was sufficiently complex to justify the 40-month delay. The factors noted were:

• six months of investigation, involving two police services;
• 30,000 pages of disclosure;
• 2,800 photographs;
• dozens of video-recorded witness statements;
• 6,800 pages of cellphone records;
• 25,000 text messages with content;
• 103,000 lines in Excel of subscriber records from Mr. Picard's phone;
• 78 witnesses interviewed;
• 60 judicial authorizations; and
• eight separate areas of expert evidence.

[30] The trial judge acknowledged that, "[a]t first blush, it would appear that the Crown can easily make the case for complexity", but concluded that "when looked at more closely, it does not stand up". She explained that despite the large quantity of disclosure, only a fraction of the text messages, photographs and cellphone records would be introduced into evidence at trial. In her view, this was, in essence, a circumstantial case and the legal issues were not complex or novel. She therefore rejected the Crown's submission that the complexity of the case justified the delay in excess of the presumptive ceiling, commenting: "In short, to the extent that any murder trial could ever be described as typical, this is it."

[31] The trial judge then turned to whether the transitional exceptional circumstance applied to this case, considering the factors set out in R. v. Williamson. She repeated her earlier finding that this was not a complex murder trial. She then applied the framework from R. v. Morin to assess the delay. As for the analysis of the 48 months of delay, she found that, as per her earlier analysis, there were eight months of defence delay, which reduced the total for Morin purposes to 40 months. A delay of that length made it vulnerable to a finding that it was unreasonable and further analysis was required.

[32] According to the calculations of the trial judge, the 40 months of delay comprised 14 months of inherent time requirements, 19 months of institutional delay and seven months of Crown delay. She expressed concern that the institutional delay of 19 months was in excess of the 14 to 18 months representing an acceptable allowance for limits on institutional resources under Morin. The seven months of Crown delay were problematic, particularly in view of the institutional delay being beyond the acceptable limits. The situation was all the worse given that Mr. Picard had suffered serious prejudice, having remained in custody throughout the period of delay.

[33] The trial judge found that the Crown's decision to delay the trial to accommodate the schedule of two assigned Crowns demonstrated a failure to pay any real heed to the s. 11(b) interest of the accused. She concluded that the delay was not justified under the transitional exceptional circumstance of Jordan and a stay should issue.

Timeline

[34] Before turning to the issues raised on appeal, it is useful to set out the timing of the various steps taken from the laying of the charge to the scheduled end of the trial.

C. Issues

[35] The Crown raises four issues on appeal. It argues that the trial judge erred:

(1) in her failure to consider the prejudice to the Crown resulting from the late and deficient s. 11(b) application;

(2) in her attribution of defence delay;

(3) in her complexity analysis; and

(4) in her application of the transitional exceptional circumstance.

D. Analysis

The law

[36] The Jordan framework governs the s. 11(b) analysis in this case. Because the charges were laid well before the decision in Jordan, the transitional exceptional circumstance set out in Jordan needs to be considered as a last step in the analysis.

[37] As explained above, Jordan provides that delay is measured from the date of the charge to the end or anticipated end of the trial. From this period is deducted any delay attributed to the defence. If the net delay exceeds the presumptive ceiling of 30 months for cases in the Superior Court, the Crown bears the onus of establishing that the delay was caused by "exceptional circumstances" beyond its control.

[38] Exceptional circumstances generally fall into two categories: (1) discrete events, and (2) particular complexity arising from the evidence or the issues.

[39] Delay arising from discrete events is subtracted from the net delay for the purpose of determining whether the presumptive ceiling has been reached. If the remaining delay exceeds the ceiling, the court must consider whether the case was particularly complex, such that the delay is justified: R. v. Coulter, at para. 39.

[40] As explained in R. v. Cody, at para. 64, "case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex." Unlike defence delay or discrete events, "[c]omplexity cannot be used to deduct specific periods of delay" but rather it involves considering "whether the net delay is reasonable in view of the case's overall complexity": para. 64.

[41] For cases already in the system at the time of Jordan's release, a transitional exceptional circumstance may arise if the Crown establishes that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed: Jordan, at para. 96. The transitional exceptional circumstance may justify the delay even where the deduction of discrete events does not reduce the delay below the ceiling and excess delay cannot be justified by case complexity: Cody, supra, at para. 67.

[42] As explained in Cody, at paras. 68--69:

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

To be clear, it is presumed that the Crown and the defence relied on the previous law until Jordan was released.

[43] In reviewing aspects of the case pre-dating Jordan, the court should focus on reliance on factors that were relevant under the previous Morin framework: Cody, at para. 71.

[44] In the present case, virtually all of the delay, and all of the decisions made that caused the delay, pre-date the release of Jordan.

Fresh evidence motions

[45] Before this court, Mr. Picard brought a motion for the admission of fresh evidence. The Crown's appeal books also contain materials that were not before the trial judge on the s. 11(b) application, which I will treat as proposed fresh evidence. The bulk of this proposed fresh evidence relates to the motion to expedite the trial and the availability and assignment of Crown counsel in the period leading up to and at the date of trial.

[46] From my review, those materials, with the exception of the transcript of the hearing of the motion to expedite, do not materially change the record that was before the trial judge and therefore could not reasonably be expected to have affected the result: R. v. Palmer, at p. 775 S.C.R. As a result, apart from that transcript, which both parties rely on in their submissions, I would not grant leave to file the fresh evidence.

Discussion of the grounds of appeal

(1) Did the trial judge err in accepting the s. 11(b) application on the basis it was late and deficient?

[47] The Crown submits that the trial judge erred in failing to consider prejudice to the Crown resulting from the late and incomplete materials filed on the s. 11(b) application. Counsel argues that inadequate notice in this case put the Crown at a disadvantage and that the trial judge ought to have considered whether an adjournment was necessary and, at a minimum, ought to have allowed the Crown more than one or two days to review Mr. Picard's s. 11(b) material.

[48] In my view, the Crown was not prejudiced by the short notice in this case. Up to and during the aftermath of the s. 11(b) hearing, the Crown advanced no claim of unfair advantage or prejudice. The Crown vigorously argued the application and, even in this court, fails to demonstrate any tangible prejudice. As a result, I would dismiss this ground of appeal.

(2) Did the trial judge err in her attribution of defence delay?

[49] The Crown argues that the trial judge erred in deducting only two months as a result of Mr. Picard's change of trial counsel. In the Crown's view, the full seven months from the laying of the charge to the decision denying bail ought also to have been deducted as defence delay.

[50] In the Crown's submission, it is apparent from the record that Mr. Picard was focussed only on obtaining bail during this period and did nothing to move the matter forward.

[51] I disagree. The trial judge correctly determined that, under Jordan, the seven months was legitimate defence preparation time to review disclosure and bring on a bail application. It should not be characterized as defence delay. I also agree with Mr. Picard's submission that the Crown has an obligation to move a matter forward and the Crown never proposed scheduling a judicial pre-trial until after Mr. Picard's bail status was determined.

[52] Given my conclusion on this issue, it follows that the trial judge was correct in finding that the net delay is 46 months. On appeal, the parties do not dispute the trial judge's additional deduction of six months for discrete events, leaving a remaining delay of 40 months, which exceeds the presumptive Jordan ceiling. It remains to be considered whether the trial judge erred in finding that the excess delay was not justified by case complexity or by the transitional exceptional circumstance.

(3) Did the trial judge err in her complexity analysis?

[53] Complexity is considered at two stages in the Jordan analysis.

[54] First, the Crown may be able to rebut the presumption that a delay over the presumptive ceiling is unreasonable by showing that there were exceptional circumstances. One such exceptional circumstance is that the case is "particularly complex": Cody, at para. 63.

[55] Second, the complexity of the case is considered when applying the transitional exceptional circumstance. As explained in Jordan, at para. 97, cases already in the system where the delay exceeds the presumptive ceiling will not automatically be stayed where the delay results from the fact that "the case is of moderate complexity in a jurisdiction with significant institutional delay problems": see, also, Williamson, at para. 26. In addition, the complexity of the case may serve to excuse longer periods of delay under the Morin jurisprudence which, for charges laid before Jordan, the parties may have reasonably relied on. As explained in R. v. Schertzer, at paras. 126 and 131, the acceptable inherent delay will be longer in complex cases where, for example, it results in a lengthy disclosure process.

[56] In my view, the trial judge committed two errors in her consideration of the complexity of the case. As I will explain, however, these errors had little impact on the outcome of the appeal.

[57] First, in assessing whether there was an exceptional circumstance, she focused her analysis of the complexity of the case on how the case would present at trial, rather than considering the complexity of the case more broadly over the course of the entire proceeding.

[58] Second, she failed to consider the complexity of the case in her analysis of the transitional exceptional circumstance. In that analysis, she simply referred to her earlier finding on complexity and commented that the case was, at most, moderately complex.

[59] In this section of my reasons, I will only address the first of the two errors. As for the second error, I will return to it when, later in these reasons, I deal with the transitional exceptional circumstance.

[60] Dealing now with the first error, the Supreme Court of Canada described the nature of complex cases, at para. 77 of Jordan:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time.

[61] In the Crown's submission, the evidence in this case made it a complex case to litigate and it is an error to look only at the complexity of the trial as the trial judge did.

[62] In Cody, at para. 64, the court explained that complexity "is an exceptional circumstance only where the case as a whole is particularly complex" (emphasis added). A case can be complex in the earlier stages and require extensive disclosure, the compiling of expert evidence and numerous witness statements, only to be made simpler and more straightforward when it comes time for trial. This can be the result of factors such as concessions made by the defence, the negotiation of a comprehensive agreed statement of facts, changes in the charges or number of accused, or even, as here, the preparation of charts or summaries that distill extensive and complex data so as to assist in the presentation of the case. These kinds of complexity in the early stages may result in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry and so on, although the case is simple by the time of trial.

[63] In her reasons, the trial judge listed the complexities involved in putting together the case. After noting that the extensive investigation and documentation "at first blush" easily made out a case for complexity, she then turned to what evidence would be led at trial and concluded that, at trial, the case would not be a particularly complex one to present. Although I agree that not all of the documents, records, photographs and text messages assembled by the Crown would have to be tendered in evidence at trial, and that this reduced complexity at trial is a component of the complexity analysis, it is just that -- only a component of what should have been a broader analysis.

[64] There clearly was significant complexity in the early stages of this case, as illustrated by the voluminous disclosure and the need for a five-week preliminary inquiry. This said, I do not consider that the trial judge's error was of any consequence at this stage of the Jordan analysis. I say so for three reasons.

[65] First, it is apparent that the Crown, through preparing charts and summaries and through negotiating admissions by the defence, attenuated the complexity involved in presenting the case at trial and reduced any delay that might otherwise be justified to account for preparing and presenting a complex trial. This, in effect, is what the trial judge observed.

[66] Second, the fact that there was an eight-month delay when Mr. Picard changed counsel gave the Crown time it may otherwise have needed to prepare material and witnesses required for the extensive preliminary inquiry, further attenuating the impact of the complexity of the case.

[67] Third and most significantly, the problematic seven-month delay that resulted from the Crown's insistence that the trial only proceed when the two senior Crowns assigned to the case were available was only peripherally related to the complexity of the case. I am prepared to accept that, in a case such as this, where there is a very extensive documentary record and extensive disclosure, it makes some sense to try and retain the original Crowns. Reassigning a case to different Crowns would undoubtedly result in a waste of time and resources. The reluctance to reassign the case might, therefore, justify a modest delay. But the delay caused here is simply too long. In addition, the fact that the court's first available dates were eight months away gave ample time for a reassignment of one or both Crowns and time for the new Crowns to prepare the case. Complexity, therefore, did not justify taking the position that the trial could not proceed until the assigned Crowns were available.

[68] In my view, when, as here, Mr. Picard has been incarcerated for some 29 months awaiting trial, and a trial at month 37 is offered by the court and defence, the Crown cannot, by insisting that both senior Crowns assigned to the case be available, push the start date of the trial to month 44. This is precisely the type of approach that Jordan seeks to remedy.

[69] As a result, despite the error in how the trial judge approached the issue of complexity, I agree with her conclusion that the complexity of this case did not constitute an exceptional circumstance such that the time the case has taken above the presumptive ceiling is justified under Jordan.

(4) Did the trial judge err in her analysis of the transitional exceptional circumstance?

[70] A presumptively unreasonable delay can be justified under the transitional exceptional circumstance if it is shown that, on a correct assessment of the law as it previously existed, the time the case has taken is justified and the parties reasonably relied on the previous state of the law: Jordan, at para. 96.

[71] To determine whether a transitional exceptional circumstance justifies a delay above the presumptive ceiling, the court must conduct a contextual assessment of all the circumstances: R. v. Manasseri, at paras. 320-21. Following the example set in Williamson, relevant circumstances include:

(i) the complexity of the case;

(ii) the period of delay in excess of the Morin guidelines;

(iii) the Crown's response, if any, to institutional delay;

(iv) the defence efforts, if any, to move the case along;

(v) prejudice to the accused.

[72] In considering the transitional exceptional circumstance, the trial judge in this case effectively ignored the first consideration, the complexity of the case. She simply stated that she would not reiterate the analysis she had already undertaken in finding that case complexity did not justify the delay and noted that, at most, this could be described as "a moderately complex case".

[73] The complexity of the case appears to have played no further role in the trial judge's analysis of the transitional exceptional circumstance. This was an error. As was stated recently in R. v. Pyrek, at para. 30, "although this case was not sufficiently complex to meet the requirement of exceptional circumstances under Jordan, for transitional cases moderate complexity bears on the reasonableness of the delay".

[74] The more significant error, however, is in how the trial judge assessed the delay under the Morin framework. As I will explain, she mischaracterized several elements of the delay, significantly overstating the amount of institutional delay. These errors infected her analysis of the Crown's actions: she found that the Crown's refusal to expedite the trial was particularly problematic as it added seven months of delay when the anticipated institutional delay was already above the Morin guidelines. Properly analyzed, the institutional delay should have been seen as being well within the Morin guidelines, and it would have remained within the guidelines even when the Crown delay was added. When correctly assessed, therefore, the delay would not have been found unreasonable under the law prior to Jordan.

[75] I turn now to the assessment of the reasonableness of the delay under Morin.

(i) The general framework under Morin

[76] Under Morin, the reasonableness of the delay is determined by balancing the following factors, which are set out at pp. 787-88 S.C.R.:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including:

   (a) inherent time requirements of the case,

   (b) actions of the accused,

   (c) actions of the Crown,

   (d) limits on institutional resources, and

   (e) other reasons for delay; and

4. prejudice to the accused.

[77] The court is to begin by considering whether the length of the delay warrants an inquiry. The relevant period of time is from the charge to the end of the trial. If this period is long enough to raise an issue as to its reasonableness, then the court proceeds to subtract periods waived by the defence. If waiver on its own does not resolve the s. 11(b) application, the court goes on to allocate delay to the factors set out in (a) to (e) above: R. v. Tran, at paras. 21-22.

[78] Inherent time requirements will reflect the complexity of the case, and will also include intake requirements, including a longer period for cases which go through a pre-trial. Institutional delay starts to run when the parties are ready for trial, but the system cannot accommodate them. The period of institutional delay is compared with the Morin guidelines, which are eight to ten months in provincial court and six to eight months between committal and the start of the trial in Superior Court. Crown delay also counts in favour of a finding of unreasonable delay.

[79] At the balancing stage, the court looks at the reasons for the delay, the prejudice to the accused, and the interests s. 11(b) seeks to protect: R. v. Godin, at para. 18; Tran, at paras. 23-24. In explaining the purpose of s. 11(b), the majority in Morin observed that there is a societal interest in bringing cases to trial, and "[a]s the seriousness of the offence increases so does the societal demand that the accused be brought to trial": p. 787 S.C.R.

(ii) The trial judge's Morin analysis -- Categorization of time periods

[80] The trial judge's allocation of the delay under Morin was set out in an appendix to her reasons.

[81] When considering the Ontario Court of Justice proceedings, the trial judge attributed nine months to the inherent requirements of the case, ten months to institutional delay and eight to defence delay. In the Superior Court, she attributed five months to inherent time requirements, eight months to institutional delay (although she appears to have shown it to be nine months in the section giving the totals), and seven months to Crown delay. The overall result, according to the trial judge, was 19 months of institutional delay, which is slightly above the high end of the Morin guideline of 14-18 months for a trial that proceeds through the Ontario Court of Justice and the Superior Court: see R. v. W. (A.J.), at para. 45. To these 19 months of institutional delay, the trial judge added the seven months of Crown delay, for a total delay of 26 months. She therefore concluded that the delay would likely have been unreasonable under Morin.

[82] As I will explain, the application judge erred in two respects. First, she attributed one month of the December 12, 2012 to July 18, 2013 period to institutional delay. Second, she did not provide for a reasonable period of "inherent" time to allow the parties the time to prepare and be available for the preliminary inquiry and trial. Rather, she characterized as institutional delay all of the time from the date the preliminary inquiry was set (April 4, 2014) to the beginning of the preliminary inquiry (December 1, 2014) and from the time the trial date was set (May 29, 2015) to the first date the court and defence were available to begin pre-trial motions (February 1, 2016).

[83] Contrary to the Crown's submission, however, I would not interfere with her attribution of the whole of the seven-month delay from February 1, 2016 to September 6, 2016 to the Crown.

[84] Further, I agree with the trial judge's finding that, in the circumstances, the Crown's reliance on prosecutorial discretion to justify the delay was unreasonable.

[85] I will now address these in turn.

(iii) The proper allocation of the December 12, 2012 to July 18, 2013 period

[86] The trial judge divided the seven-month period from the laying of the charge on December 12, 2012 to the date Mr. Picard dismissed his counsel, July 18, 2013, into six months of neutral intake time and one month of institutional delay. This appears to flow from her finding that a reasonable intake period in this case was six months. Her reasons, however, do not explain why she determined that the seventh month was institutional delay. From the record, there appear to have been two possibilities -- both, in my view, incorrect.

[87] One possible basis is that the trial judge reasoned that, because neither the court nor the Crown had scheduled the preliminary inquiry by the sixth month, the additional month just prior to the dismissal of Mr. Picard's counsel should be viewed as institutional delay.

[88] I do not quarrel with the trial judge's assessment that six months is a reasonable intake period and would give the parties sufficient time to get organized, deal with disclosure and set a preliminary inquiry date. The error, however, would be in attributing the seventh month, June 18 to July 18, to institutional delay. It is apparent from the record that the delay was due to Mr. Picard's legal aid issues.

[89] On June 25, 2013, Mr. Picard's counsel advised the court that "there was a significant issue with respect to . . . an outstanding legal aid application. So in terms of setting further [judicial pre-trials] or preliminary inquiry dates we're still waiting for that". Then again on July 4, 2013, counsel for Mr. Picard indicated to the court that "[w]e're still in the process of going through the legal aid application".

[90] To the extent that Mr. Picard's dealings with legal aid played a role in the delay up to July 2013, the time needed to apply for and obtain legal aid is, under the Morin regime, properly considered as an inherent time requirement of the case: see R. v. Boateng.

[91] The second possible reason the trial judge may have categorized the one month as institutional delay is that she counted the period between the setting of the date for the bail hearing and the beginning of the bail hearing on May 23, 2013 -- a period she estimated as one month, given the lack of evidence regarding when exactly the date was set -- as institutional delay. This, too, would have been in error. The delay in holding the bail hearing did not delay the overall proceeding. The intake period of six months continued to run during the month following the setting of the date for the bail hearing. Moreover, as I will explain, it would, as a rule, be unreasonable to deem the parties to be ready to conduct a hearing as of the date when the hearing date is set.

(iv) The proper allocation of delay between the setting of the preliminary inquiry dates and the start of the preliminary inquiry and between the setting of the trial dates and the first date the court and defence were available to begin pre-trial motions

[92] Under the Morin regime, institutional delay does not automatically start to run from the day the preliminary inquiry date is set or from the day the trial date is set. As Simmons J.A. explained in Tran, at para. 32:

[P]arties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them.

[93] The trial judge erred, therefore, by attributing the entire period from March 26, 2014, which was shortly before the dates for the preliminary inquiry were set, to December 1, 2014, when the preliminary inquiry began, to institutional delay. Similarly, she erred by categorizing as institutional delay the entire period from May 29, 2015, when the trial dates were set, to February 1, 2016, the first available date for pre-trial motions.

[94] Turning first to the preliminary inquiry dates, institutional delay could only have started running on March 26, 2014, as found by the trial judge, if the parties would have been ready to begin the preliminary inquiry on that date. It is, however, apparent that the parties would not have been able to begin on that date.

[95] Where there is evidence from which courts can infer the availability of the parties, this has been used to determine how much time to attribute to inherent time requirements for becoming available and preparing for the hearing. In the present case, however, it is not clear from the record what would have been the earliest time at which the parties would have been ready to proceed with the preliminary inquiry.

[96] Based on the fact that discussions about admissions and witnesses continued into the end of April, it is clear that the parties would not have been ready on April 4, 2014, when the date of the preliminary inquiry was set. The record further shows that in May the parties determined that five days should be added to the length of the preliminary inquiry. Then in June, Mr. Picard's counsel asked that the matter go over to a later date "to see the doctor regarding the possible NCR". It is also of note that Mr. Picard's new counsel had been in place for only two months when the date of the five-week preliminary inquiry was set. It is reasonable to conclude, therefore, that a substantial portion of the eight-month period leading to the start of the preliminary inquiry was needed for Mr. Picard's counsel to clear his calendar and prepare for the preliminary inquiry.

[97] The range as to what length of time is appropriately classified as inherent varies widely in the case law from a few days to up to 13 months, depending on factors such as the complexity of the case and length of the proposed preliminary inquiry: see, for example, R. v. Khan, where five months and ten days was allowed; Schertzer, where 13 months was allowed; and R. v. Ralph, where four months was allowed.

[98] I consider it reasonable in this case to allocate from March 26, 2014 to July 31, 2014, just over four months, to the inherent time requirements of the case. The remaining four months are properly categorized as institutional delay.

[99] The trial judge made a similar error in treating the entire period from May 29, 2015, when the trial date was set, to February 1, 2016, as institutional delay. February 1, 2016 was the first date the court could offer for pre-trial motions to begin. Again, institutional delay begins when the parties are ready to proceed to trial but the court is not. To treat this eight-month period as institutional delay is to assume that the parties could have proceeded with the trial on the day after the set date hearing. I see no evidence of this in the record.

[100] At the court appearance on May 29, 2015, the court reviewed the various dates that were offered. Defence counsel confirmed that they were available "for the earliest possible dates, which were February 1st and then February 29th and we are available for all of the other dates that were offered". Crown counsel confirmed that they were unavailable from February 1, 2016 until the end of June 2016. There is no indication as to when, before February 1, 2016, counsel would have been available and ready to proceed. It is not clear, therefore, what part of the May 29, 2015 to February 1, 2016 period is properly considered to be inherent time requirements of the case. However, some time would be required for the parties to be available and prepare. By this point in the proceedings, counsel would be quite familiar with the case and, as is apparent from Mr. Picard's later motion to expedite the trial, he was anxious to proceed. There was, nonetheless, the need to prepare and be available for two weeks of pre-trial motions and six weeks of trial. There was also the need for some time to work out any admissions.

[101] Again, the case law is of little assistance as to what is an appropriate period of time to allow. Each case is specific to its own facts. Given the significant anticipated length of the trial, I consider a reasonable period for inherent time to prepare and be available for trial to be from May 29, 2015 to November 1, 2015, a period of just over five months. The remaining three months until February 1, 2016 are institutional delay.

[102] These errors in the allocation of delay significantly overstated the extent of institutional delay. In fairness to the trial judge, the Crown appears to have agreed with the trial judge's allocation of institutional delay. This court is, however, not bound by erroneous concessions made by the Crown in allocating periods of delay: Tran, at para. 31.

(v) The assessment of Crown delay

[103] The trial judge viewed the entire seven-month delay from February 1, 2016 to September 6, 2016 as Crown delay.

[104] The Crown argues that, under the Morin regime, none of the seven-month delay to accommodate the schedule of the two assigned Crowns should be viewed as Crown delay. Properly assessed, it should be viewed as neutral. In support of its submission, the Crown relies on R. v. Cody, which was released shortly before the hearing of the s. 11(b) application, as well as the case of Godin.

[104] The Crown also takes issue with the trial judge's finding that, in the circumstances of this case, the Crown's decision to oppose Mr. Picard's motion to expedite the trial and rely on prosecutorial discretion in the assignment of Crown counsel was unreasonable. This error, the Crown submits, contributed to the trial judge incorrectly attributing the seven-month delay to the Crown.

[106] I disagree. I will deal first with the trial judge's finding that the Crown's opposition to the motion to expedite, although within its right to make, was unreasonable.

[107] On the motion to expedite, the Crown's position was that absent a finding by the court that the Crown selection of trial counsel amounted to an abuse of process, the court had no power to set the matter for trial on a date when assigned Crown counsel were not available. In effect, the Crown argued that subject to a finding of abuse of process (a very difficult finding to make), the Crown could veto any proposed trial date. On the Crown's argument, setting a trial date for a date on which an assigned Crown was not available was tantamount to a court order removing the chosen Crown counsel from the trial. The Crown argued that such an order could only be made if the trial judge concluded that allowing the assigned Crown to remain in place constituted an abuse of process. Although the motion judge agreed with this position, I do not.

[108] There is no doubt that the choice of counsel to prosecute a particular case is a matter for the Attorney General or his or her representative. The court does not play a role in that decision. It is equally beyond doubt that it is the court that sets trial dates. In deciding when a trial should start, the court must have regard to the various legitimate concerns advanced by the defence and the Crown as well as systemic and institutional concerns. In some prosecutions, and this is certainly one, the Crown has a legitimate interest in having senior counsel, who have had carriage of the prosecution throughout, represent the Crown at trial so as to maintain continuity in the prosecution. That interest is, however, only one of many legitimate concerns that must be taken into account. Accommodating the Crown's desire to maintain continuity in the prosecution of the case must be balanced against other concerns, notably the continued imprisonment of an accused, who is presumed innocent, for an additional lengthy period of time. In this case, the accused had already been in custody for two and a half years and the proposed trial date was eight months in the future, giving the Crown ample time to make alternative arrangements.

[109] I disagree therefore with the decision of the motion judge who heard the motion to expedite and would not have given effect to the Crown's position and the premise on which it was granted. In my view, a proper exercise of the court's discretion in setting the trial date on the motion to expedite should have led to a trial date in February. It would then have fallen to the Attorney General or his designate to decide who would prosecute the case. As a result, I see no error in the trial judge concluding that the Crown's reliance on prosecutorial discretion to oppose the setting of a February trial date was in this case unreasonable.

[110] I turn now to the proper characterization of the seven-month delay.

[111] In my view, the trial judge was correct in her conclusion that this delay was not neutral.

[112] The Supreme Court of Canada reversed the Newfoundland and Labrador Court of Appeal's decision in Cody, which the Crown relied on.

[113] Furthermore, the situation in Godin is not comparable to what occurred in this case and does not stand for the proposition advanced by the Crown. In Godin, the court held that it was an error to attribute delay to the defence as soon as a single available date is offered to defence counsel and not accepted. The court noted that s. 11(b) requires reasonable availability and co-operation, but does not require defence counsel to "hold themselves in a state of perpetual availability". In the present case, the delay in question did not arise from Crown unavailability on a single date, but from Crown unavailability on any of the dates offered in a five-month period.

[114] In Morin, the court explained that actions of the Crown that delay the trial and that are unreasonable will result in the delay being attributable to the Crown. Assigning delay to the Crown, however, is not to be taken as assigning fault or blame nor ought it be viewed as assigning improper motives: para. 46.

[115] It follows, therefore, that the Crown's failure to propose reasonable dates for trial is properly characterized as Crown delay both under Jordan and under the previous Morin regime. This is all the more so given that Mr. Picard remained in custody throughout.

[116] The Crown further argues that it should only be held responsible for five months of delay, as it was prepared to commence the trial at the beginning of July. It was only the court's unavailability that pushed the trial date to September. The trial judge rejected this submission because, in her view, all of the delay resulting from the Crown's rejection of the earlier dates offered constituted Crown delay.

[117] On appeal, Mr. Picard supports the trial judge's decision in this regard. He relies on R. v. M. (N.N.), where this court made it clear that a party who causes an adjournment is responsible for the entire period of delay until the matter can be rescheduled, unless the other party is unavailable for an unreasonable length of time.

[118] In my view, on the facts of this case, it was open to the trial judge to characterize the seven months of delay as Crown delay. She found that, if the earlier dates offered to the Crown had been accepted, the trial would have concluded before the summer break. As a result, she concluded that the Crown had to accept responsibility for the entire period of the delay. Her finding in this regard is owed deference.

[119] The trial judge noted that, traditionally, the court does not schedule jury trial matters in July and August. This likely explains why the possibility of scheduling the pre-trial motions during July and August does not appear to have been explored when the trial dates were set. Scheduling the pre-trial motions in the summer would have allowed the trial proper to begin in September, obviating the need to empanel a jury during the summer months, but nonetheless, shortening the overall delay by two months. Under Jordan, the summer scheduling policy may have to be revisited.

(vi) Summary of the Morin factors

[120] I do not take issue with the trial judge's characterizations of time periods other than those dealt with in the previous paragraphs. Nor have the parties raised an issue with respect to these. I have therefore adopted them in my analysis of the overall delay.

[121] As I noted earlier, the trial judge made one transpositional error in her table: it shows the amount of institutional delay in the Superior Court to be eight months, but, in listing the totals, indicates that the institutional delay was nine months. The trial judge also made two additional errors. The period from March 26, 2014 to December 1, 2014 is eight months, rather than nine. The end of the trial should be shown as December rather than November, which makes this period of inherent delay four months.

[122] I would summarize the correct allocation of the delay under Morin as follows:

Corrected Morin Delay Analysis:

• Ontario Court of Justice: 9 months inherent, 4 months institutional, 8 months defence
• Superior Court: 17 months inherent, 3 months institutional, 7 months Crown
• Total: 26 months inherent, 7 months institutional, 7 months Crown, 8 months defence

[123] Properly analyzed, therefore, the total delay is 48 months, made up of eight months of defence delay, seven months of Crown delay, seven months of institutional delay and 26 months of inherent time requirements.

(vii) The balancing under Morin

[124] I turn now to the final step in a Morin analysis: whether the delay is unreasonable having regard to the interests s. 11(b) aims to protect, the explanations for the delay and the prejudice to the accused: see Morin, at pp. 786-803 S.C.R.

[125] The length of the delay, 48 months, is clearly a concern. There is significant prejudice to Mr. Picard's liberty interest, given that he was in custody throughout the proceeding. There is, however, no suggestion of prejudice to Mr. Picard's right to a fair trial.

[126] The prejudice to Mr. Picard is, however, mitigated by several facts. First, in excess of half of the delay in this case is inherent. This was a somewhat complex prosecution that required extensive disclosure and a significant amount of court time to complete: a four-day bail hearing, a five-week preliminary inquiry, numerous appearances, two weeks of pre-trial motions and a six-week trial. Prejudice to a liberty interest accruing during a time period that is part of the inherent time requirements of the case cannot justify a finding of a breach of s. 11(b): Boateng, at para. 41. To this is added the fact that eight months of delay are attributable to the defence.

[127] Mr. Picard's efforts to set an earlier trial date also favour a stay. Clearly, in bringing his motion to expedite the trial, Mr. Picard was doing what he could to reduce delay and have the case heard.

[128] Institutional delay, however, does not favour a stay. It was only seven months in total, well below the 14 to 18-month Morin guideline.

[129] In my view, the Crown's decision to delay the trial to accommodate the schedule of its two assigned Crowns is a serious concern. It resulted in an additional seven months of delay. The Crown maintained this position in the face of a defence motion to expedite the trial. With Mr. Picard in detention during this period, this additional seven-month delay weighs in favour of a stay.

[130] It would, however, be an error to view the Crown's decision through the lens of the new Jordan regime. Clearly, as a result of the decision in Jordan, a decision such as the one the Crown made in this case would weigh heavily against the Crown and might in fact be determinative as to whether a stay should issue. Under Jordan, where accumulated delay is significant, whatever the cause, the Crown, defence and the court are to work toward reaching and completing the trial in as short a time as reasonably possible. This is all the more so when the accused is detained.

[131] The Crown's decision must, therefore, be viewed in its proper context. At the time the motion to expedite was heard in August 2015, Jordan had not been released and, on a proper analysis of the accrued delay in the Ontario Court of Justice, only four months of institutional delay had occurred. The proposed trial date of February 2016 would have resulted in only three more months of institutional delay. On this analysis, therefore, even with the addition of seven months of Crown delay the Crown could reasonably conclude that on the analysis set out in Morin, a trial in the fall of 2016 would not violate Mr. Picard's s. 11(b) rights. In fact, given that Mr. Picard's s. 11(b) application was only brought at the last minute, after all of his scheduled pre-trial motions had been dealt with in September and October, it appears that no s. 11(b) application was initially planned. The application was brought in early November, just prior to the commencement of trial. It was, no doubt, motivated in large part by the release that summer of the Jordan decision.

[132] Even after the seven additional months of delay are taken into account, the total institutional and Crown delay is only 14 months, at the bottom end of the Morin guideline of 14 to 18 months.

[133] It is also a consideration that the Crown appears to have thought that the delay caused by its decision would be considered neutral and not Crown delay. This, as I have explained, is incorrect. I view it, however, as a mistake or misstep that is to be taken into account and not, as the trial judge characterized it, as an example of the Crown making a choice that "paid no heed to the accused's s. 11(b) rights". The Crown believed that, under the existing framework, the delay was neutral and that the overall delay in the case was well within the Morin guideline.

[134] Additional factors weighing against granting a stay under Morin are complexity and the seriousness of the offence. This was, at a minimum, a moderately complex case. Complexity serves to explain, in part, the extent of inherent time requirements for this case: as noted earlier, the court time required was extensive, disclosure was lengthy and the time required for preparation for a five-week preliminary inquiry and a six-week trial were also significant. Complexity also provides some justification for the Crown's decision to delay the trial in order that the Crowns assigned to the case need not change.

[135] First degree murder is the most serious offence in the Criminal Code. Given the serious nature of the alleged crime, there is a heightened societal interest in a trial on the merits. The trial judge appears to have interpreted the Supreme Court of Canada's decision in Williamson as standing for the proposition that the seriousness of the offence was neutral. As a result, she failed to take this interest into account. In Cody, the court makes it clear that, when doing the Morin analysis in the context of the transitional exceptional circumstance, the seriousness of the offence remains a significant consideration: paras. 70-71.

[136] I have concluded, therefore, that applying the Morin framework, a court would not, weighing the length of the delay, the reasons for the delay, the significant prejudice to the accused and the societal interest, consider the overall delay to be unreasonable.

(viii) Conclusion on the transitional exceptional circumstance

[137] I turn now to the final step of the Jordan analysis: whether, in all the circumstances, the delay is justified by the transitional exceptional circumstance. I accept that, as recognized in Jordan, trial judges are generally in the best position to determine whether exceptional circumstances exist. However, in this case, given the clear legal errors made by the trial judge in assessing whether a transitional exceptional circumstance arose, her resulting conclusion that the delay was unreasonable is owed no deference.

[138] Mr. Picard argues that the Crown's mistaken belief about the delay resulting from Crown unavailability does not support the application of the transitional exceptional circumstance, as reliance on this belief was not reasonable. I disagree. As explained in Cody, at para. 69, in transitional cases such as this, the parties are presumed to have relied on the law that applied prior to Jordan. Under the Morin regime, in light of the way delay was weighed, the overall delay in this case was reasonable, even accounting for the delay flowing from the Crown's decision not to reassign the case to different Crowns. Although, even under Morin, the Crown could be faulted for failing to reassign the case so as to reduce overall delay, the failure to take those steps would not have led to a stay under Morin.

[139] As stated in Jordan, at para. 102, "for most cases that are already in the system, the release of [Jordan] should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one". At para. 98 of Jordan, the court makes it clear that it will be relatively rare that cases already in the system when Jordan was decided, that complied with Morin, will nonetheless be found unreasonable under Jordan. This case is not akin to the example given in Jordan of a case where the delay "in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown": para. 98.

[140] Further, this is not a case where, as contemplated in Jordan, at para. 96, "the parties have had time following the release of [Jordan] to correct their behaviour". There was no opportunity between the issuance of Jordan and the beginning of the trial for the Crown to change its position with respect to retaining the assigned Crowns or to take other steps to reduce the delay. The few months of delay that accrued after Jordan was released were not enough time for the parties and the court to adapt: Cody, at para. 71.

[141] This is a difficult case. After weighing all of the factors, however, I am of the view that the appeal should be allowed. The delay above the presumptive Jordan ceiling is justified by the transitional exceptional circumstance.

E. Conclusion

[142] In conclusion, I would dismiss the motions to file fresh evidence except for the filing of the transcript of the motion to expedite, which I would allow. I would also allow the appeal, dismiss the s. 11(b) application, lift the stay and remit the matter to the Superior Court for trial.

Appeal allowed.

Notes

1 In addition, the trial judge appears to have counted this period as nine months rather than eight.

2 The chart appended to the trial judge's reasons appears to be in error, as it shows the period to be from March to September, rather than February to September.