Court of Appeal for Ontario

Date: September 25, 2017

Docket: C61075

Judges: Gillese, van Rensburg and Brown JJ.A.

Between

Her Majesty the Queen

Respondent

and

Albert Samuel Gopie

Appellant

Counsel

For the Appellant: Saman Wickramasinghe and Zachary Kerbel

For the Respondent: David Littlefield and Holly Akin

Heard: April 3, 2017

On Appeal

On appeal from the conviction entered on February 21, 2014, by Justice Joseph M. Fragomeni of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on August 20, 2014.

Gillese J.A.:

Overview

[1] This case is about a conspiracy to import cocaine from St. Maarten to Montreal. Among other things, it requires the court to determine how to treat delay caused by the actions of a co-accused for the purposes of an application under s. 11(b) of the Charter.

[2] In November 2009, 7.85 kilograms of cocaine were found in the luggage of a drug courier. In July 2010, the information was sworn. Nearly 44 months later, the jury trial of Albert Samuel Gopie and Philip Wezley Sargeant, two alleged members of the conspiracy, took place.

[3] Before trial, Gopie and Sargeant applied for a stay of proceedings, arguing that their s. 11(b) right to be tried within a reasonable time had been infringed (the "Application"). The application judge dismissed the Application based on the then-governing principles in R. v. Morin, [1992] 1 S.C.R. 771: see R. v. Gittens, 2014 ONSC 6499.

[4] Gopie and Sargeant were jointly tried on one count of conspiracy to import a narcotic and one count of importing a controlled substance (cocaine). The jury acquitted Sargeant of both counts and convicted Gopie of one count only: conspiring to import a narcotic. He was sentenced to nine years in prison.

[5] Gopie appeals against conviction and sentence. He raises three grounds of appeal, one of which is a challenge to the dismissal of the Application.

[6] In a companion appeal, the Crown appeals Sargeant's acquittal: see R. v. Sargeant, 2017 ONCA 725. Sargeant opposes the Crown appeal and, alternatively, asks that the dismissal of the Application be set aside and the proceedings against him be stayed.

[7] For the reasons that follow, I would dismiss Gopie's appeal from conviction. I would grant leave to appeal sentence but dismiss that appeal.

Background

[8] In August 2009, Ernest Wilson recruited Tara Fraser to take drugs to the United States and pick up money. A month later, Fraser abandoned that scheme. In late October, after losing her job, Fraser again agreed to work with Wilson to transport drugs.

[9] Wilson and Fraser spoke over the phone and met with each other several times. In November, Fraser agreed with Wilson that she would fly from Montreal to St. Maarten to pick up a bag and bring it back to Montreal. Wilson told her that the bag would contain marijuana.

[10] Wilson provided Fraser with money to obtain a passport on an expedited basis, and a ticket and itinerary for the trip.

[11] In November 2009, Gopie drove Wilson to two different meetings with Fraser. The first occurred in the parking lot of a McDonald's restaurant. Gopie left the car and entered the McDonald's while Fraser and Wilson talked. At the end of this meeting, Gopie returned and Wilson introduced Gopie to Fraser as "John". According to Fraser, Gopie did not speak to her during this encounter.

[12] The second meeting was on November 13, 2009, when Gopie drove Wilson to Fraser's house, so that Wilson could print a document for Fraser to sign. According to Fraser, the document was a "visitation paper" for a woman named Sharon. Since Fraser's home printer was not working at the time, the three went to a store with printing services. After they printed the document, Wilson gave Fraser $200, saying that it was for food and expenses while she was in St. Maarten. This occurred in the car and in Gopie's presence.

[13] Later that same day, Fraser drove to a gas station to meet Wilson for the trip to Montreal. Wilson had told Fraser earlier that Gopie would accompany them on the trip. While the evidence is somewhat conflicting on this point, it appears that Gopie ultimately travelled to Montreal in a different vehicle. Wilson drove Fraser's car to Montreal, with Fraser and an unnamed woman and her son as passengers. Gopie, Sargeant and Melissa Gittens also drove to Montreal from Toronto that day, but in a different car. Gittens was Gopie's romantic partner at the time. Allegedly, like Fraser, she was also a drug courier. Godfrey Gibson also travelled to Montreal in one of the two cars.

[14] The two groups happened to encounter each other while en route to Montreal at a Tim Hortons restaurant where both cars had stopped. Gittens approached Fraser's car but was waved off by Wilson.

[15] The two groups stayed at the same motel in Montreal that night.

[16] The following day (November 14, 2009), Wilson and Fraser together took a taxi to the airport. Wilson asked to borrow Fraser's car while she was in St. Maarten. Gibson, Gopie and Sargeant took Gittens to the airport.

[17] While Fraser was at the airport checking in, she noticed Wilson seated at a table in the airport food court with Gopie, Gibson and Sargeant.

[18] Fraser and Gittens flew from Montreal to St. Maarten on the same flight. Fraser and Gittens had not met before, and they had no contact until a week later, on their last day in St. Maarten. On that day, Fraser approached Gittens on the hotel's patio because Gittens had been the only person whom Fraser had heard speak in English during her stay in St. Maarten. During their conversation, they realized that they were in St. Maarten "for the same reason". That day, Fraser and Gittens met with Wilson's contact, a woman named Sharon, who gave them a total of three suitcases to take back to Canada.

[19] Gittens and Fraser flew back to Montreal, arriving in the early hours of November 22, 2009. Fraser expected to be met at the Montreal airport by Wilson and Gopie, who would then take her to Toronto. However, on the return flight, Gittens told Fraser that they would be picked up by Gopie, Wilson, Gibson and Sargeant, and taken to a Montreal motel where the suitcases with the drugs would be picked up.

[20] When they landed in Montreal, Gittens and Fraser discovered that Gittens' luggage had arrived but Fraser's had not. Gittens collected the suitcase that Sharon had given her in St. Maarten. As Fraser's luggage had not arrived at the airport, she was unable to retrieve her suitcases.

[21] Unbeknownst to Fraser, the airline had "misloaded" her suitcases with the result that they ended up in Toronto. In Toronto, customs officials had discovered the cocaine in her luggage. They then transferred the suitcases to the RCMP, which detained them.

[22] Gopie, Wilson, Gibson and Sargeant picked up Fraser and Gittens from the airport. Gopie, Wilson and Fraser left in Fraser's car. Fraser sat in the back seat behind Gopie, who was driving. Wilson joked with Fraser about the missing luggage. Fraser "freaked out", complaining that she would take the fall. Gopie intervened and told Wilson to leave Fraser alone.

[23] Sargeant, Gittens and Gibson left the airport in a different vehicle.

[24] After both groups obtained rooms in the Montreal motel, Gittens' suitcase was placed in the room that she shared with Gopie. According to Fraser, afterwards someone transferred that suitcase to Sargeant's room. Later that same morning (November 22), a man and a woman arrived in a SUV and met with Gibson and Sargeant. Fraser did not see Gittens' suitcase after that.

[25] Two trips were made to the airport to try to find Fraser's "lost" suitcases. The first trip occurred early in the afternoon on November 22, 2009, after the people in the SUV had arrived at and left the motel. This trip was made by Fraser, Gibson, Wilson, and Sargeant, who was the driver. When they arrived at the airport, Fraser entered by herself with Wilson and Gibson following shortly thereafter. Inside the airport, Fraser used a phone designated for lost luggage inquiries. The person who responded to Fraser's call said there were no items identified under the information that Fraser provided.

[26] Fraser testified that during the car ride back to the motel from this first attempt to find her suitcases, she overheard Sargeant call someone whom Sargeant addressed as Randy, while Sargeant identified himself to Randy as Paul.

[27] The second trip to find the suitcases occurred the following day, November 23, 2009. Sargeant drove Gopie, Fraser, Gittens and Gibson to the airport. Sargeant went into the airport with Fraser and Gittens while Gopie and Gibson waited outside.

[28] Police arrested Fraser and Gittens at the airport while they were trying to retrieve Fraser's luggage. Minutes later, Fraser received a text from Gopie, who had used Gittens' cell phone to text her. The text message read, "Answer your phone, it's John."

[29] Police arrested Gibson, Gopie and Sargeant in the airport's parking lot. Gibson has since been deported.

[30] The RCMP located Wilson in the motel on November 24, 2009, and arrested him. However, he was not charged with conspiracy to import cocaine until July 2010. In December 2011, in the middle of the preliminary inquiry, Wilson disappeared. At the time of Gopie and Sargeant's trial, Wilson remained at large.

[31] Both Gopie and Sargeant were charged with one count of conspiracy to import a controlled substance and one count of importing a controlled substance. The first charge was later changed to conspiracy to import a narcotic.

[32] Fraser pleaded guilty to importing cocaine and received a conditional sentence of two years less a day. Gopie, Sargeant and Gittens initially were to be tried together but, at the beginning of the trial, with the Crown's consent, the trial judge ordered that Gittens be tried separately.

[33] Fraser was the prosecution's main witness at Gopie and Sargeant's trial.

[34] The central issues at trial were whether the evidence proved that Gopie and Sargeant knew about a conspiracy to import a narcotic and whether they were co-conspirators in the importation scheme.

[35] Gopie did not testify. Sargeant testified and denied involvement in the conspiracy.

[36] The jury convicted Gopie of conspiracy to import a narcotic and acquitted Sargeant of both counts.

The Issues

[37] On his conviction appeal, Gopie submits that:

1. the trial judge erred in leaving the conspiracy count with the jury or, alternatively, that the verdict on the conspiracy count was unreasonable;

2. the jury charge was inadequate in several respects; and

3. the application judge erred in dismissing the Application.

1. Was the Verdict Unreasonable?

[38] At the close of the Crown's case, Gopie moved for a directed verdict. The trial judge dismissed the motion. On appeal, Gopie submits that the trial judge erred in leaving the conspiracy count with the jury. Alternatively, he submits that the verdict is unreasonable.

[39] Gopie contends that the Crown's case, taken at its highest, established no more than his presence for a limited number of events as part of Wilson and Fraser's plan to import drugs unfolded. He argues that the evidence could not reasonably support the inference that he had agreed to import a narcotic with Wilson or anyone else. Therefore, the motion for a directed verdict was wrongly dismissed.

[40] Alternatively, Gopie points to the fact that the jury acquitted him on the importing count and says that since the evidence was "cross-applicable" on both counts, it was not reasonable for the jury to convict him of conspiring to import a narcotic.

[41] I accept neither submission.

(a) The Relevant Legal Principles

(i) Directed Verdict

[42] A motion for a directed verdict of acquittal should not be granted "in any case in which there is admissible evidence which could, if it were believed, result in a conviction": R. v. Charemski, [1998] 1 S.C.R. 679, at para. 2. For there to be evidence upon which a reasonable jury properly instructed could return a verdict of guilty, the Crown must adduce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden. Where the evidence is purely circumstantial, the question of whether it meets the requirement of the so-called rule in Hodge's Case is for the jury: Charemski, at paras. 2-4.

(ii) Unreasonable Verdict

[43] The Supreme Court set out the legal principles that govern the scope of appellate review of a jury verdict based on alleged unreasonableness in R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 26-29. Those principles can be summarized as follows.

[44] A jury verdict is unreasonable (or cannot be supported by the evidence) if it is one that a properly instructed jury, acting judicially, could not reasonably have rendered (W.H., at para. 26).

[45] Appellate review of a jury's verdict of guilt must be conducted within two boundaries. As the Court stated at paras. 27-28:

On one hand, the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded….

On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence... [T]he court is required to review, analyse and, within the limits of appellate disadvantage, weigh the evidence and consider through the lens of judicial experience, whether judicial fact-finding precludes the conclusion reached by the jury. Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury's conclusion conflicts with the bulk of judicial experience. [Citations omitted.] [Emphasis in original.]

[46] Examples of the sorts of cases in which accumulated judicial experience may suggest that a jury's verdict is unreasonable include the evidence of jailhouse informants and accomplices, and eyewitness identification evidence (W.H., at para. 29).

(b) Application to this Appeal

[47] The trial judge flatly rejected the motion for a directed verdict. While the evidence against Gopie was largely circumstantial, it is clear that if believed, it could result in Gopie's conviction for conspiring to import a narcotic. Therefore, the trial judge did not err in dismissing the motion. The summary of the evidence, below, also explains why the jury verdict was not unreasonable.

[48] There was no real issue in this case that there was a conspiracy to import a narcotic into Canada. The issue was whether Gopie and Sargeant were members of the conspiracy. The essence of this ground of Gopie's appeal is his contention that guilt could not be reasonably inferred from the body of mostly circumstantial evidence. In support of this contention, he points to pieces of the evidence, saying that they were equally consistent with him simply wanting to be in Montreal to party.

[49] The flaw in this submission is that Gopie asks this court to view the individual pieces of evidence in isolation. When viewed in its entirety, the evidence reasonably supported the verdict. I will not repeat the facts set out above in the background section of these reasons. Instead, I will summarize some of the more significant aspects of that evidence.

[50] Gopie's involvement began only after Wilson and Fraser had agreed to the St. Maarten drug plan in early November 2009. He was present at two meetings between Wilson and Fraser and he was in the car when Wilson handed Fraser $200 and said it was spending money for when she was in St. Maarten. Gopie went to Montreal from Toronto on the same day and at the same time as Fraser and Wilson, albeit in a different car. The two cars arrived at the same Montreal motel. The occupants of the two cars – including Gopie, Fraser and Wilson – stayed at the motel that night. The following day, Fraser flew to St. Maarten where she picked up the drugs.

[51] Gopie (and others) went to the Montreal airport to pick up Fraser and Gittens when they returned from St. Maarten with drugs in their luggage. In Gopie's presence, Wilson and Gibson tried to find out what had happened to Fraser's "lost" luggage and Wilson was very concerned that the luggage was missing. Gopie tried to calm Fraser down when she "freaked out" that she would be found out and told Wilson to "lay off" Fraser at that point in the return journey from the Montreal airport to the motel where they were all staying.

[52] Gopie shared a room with Gittens at that motel. Gittens' suitcase – given to her by Wilson's contact in St. Maarten – was first delivered to the motel room she shared with Gopie.

[53] On November 23, Gopie went to the airport with Gittens and Fraser (and others) where they attempted to retrieve Fraser's "lost" luggage. Gopie texted Fraser within moments of her arrest, telling her to answer the phone because it was "John" (his nickname).

[54] This evidence, if believed, could result in Gopie's conviction for conspiracy to import a narcotic. It reasonably supports the inference that Gopie was part of the plan to import a narcotic into Canada, along with Wilson and Fraser. I note also that this is not the type of case in which accumulated judicial experience suggests that the jury's verdict might be unreasonable. Finally, as I have already indicated, this evidence shows why it was not unreasonable for the jury to have convicted Gopie of conspiracy to import a narcotic while acquitting him on the importing count.

[55] Therefore, I would dismiss this ground of appeal.

2. Was the Jury Charge Inadequate?

[56] In his factum, Gopie argued that the charge did not fairly guide the jury: (a) through the relevant evidence as it applied to the law of conspiracy; (b) on the relevance of expert evidence given by Constable Palanuk; and (c) on the exculpatory effects of the evidence of Fraser, Sargeant and Palanuk.

[57] In oral argument, Gopie abandoned the latter two submissions. Therefore, I will address only his first submission, the substance of which is that the trial judge failed to fairly summarize the whole of the evidence relevant to step two of the Carter[1] analysis. In effect, he contends that the trial judge erred because he set out the evidence directly admissible against Gopie on step two but did not point out other evidence (or lack thereof) suggesting that Gopie was in Montreal simply to party and hang out with friends.

[58] I do not accept this submission.

(a) The Relevant Legal Principles

[59] A functional approach must be taken when assessing the adequacy of jury instructions – they must be tested against their ability to fulfil the purposes for which they are given. The charge must ensure that the jury understands: the factual issues to be resolved; the law to be applied to those issues and the evidence; the positions of the parties; and, the evidence relevant to the positions taken by the parties on the various issues: R. v. MacKinnon, 43 O.R. (3d) 378 (C.A.), at p. 386.

[60] Gopie's submission on this ground of appeal centers around step two of the Carter analysis. In considering this submission, it is useful to bear in mind the three steps in that analysis. In R. v. Chang, 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 53 (relying on R. v. Barrow, [1987] 2 S.C.R. 694), this court set out those steps as follows:

1. the trier of fact must first be satisfied beyond a reasonable doubt that the alleged conspiracy in fact existed;

2. if the alleged conspiracy is found to exist, the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether the accused is a member of the conspiracy; and

3. if the trier of fact so concludes, the trier must go on and decide whether the Crown has established such membership beyond a reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.

(b) Application to this Appeal

[61] Gopie makes no complaint about the trial judge's articulation of the relevant legal principles, the factual issues the jury was directed to resolve, or the parties' positions. His quarrel is with the trial judge's review of the evidence at step two of Carter. While not determinative, the fact that defence counsel did not object to the instruction on this matter, despite having the draft charge for a week in advance of it being delivered, is telling: R. v. Warren, 2016 ONCA 104, 345 O.A.C. 225, at paras. 26-27. This consideration is underlined by the fact that the trial judge engaged in extensive consultation with counsel regarding his instructions at step two of the Carter analysis before finalizing his jury instructions.

[62] In my view, the jury instruction clearly meets the functional approach set out in MacKinnon, above.

[63] The trial judge set out the elements of the offence of conspiracy, stating that the Crown had an obligation to prove beyond a reasonable doubt that: (1) there was a conspiracy among two or more persons; (2) the conspiracy was to import a narcotic into Canada; and (3) Gopie and Sargeant were members of that conspiracy. He reviewed the evidence relating to the first element and said that if the jury accepted Fraser's testimony about her dealings with Wilson in arranging for her to bring back a narcotic from St. Maarten, they would "have no difficulty in determining that there was a conspiracy between Tara Fraser and Ernest Wilson" to import a narcotic into Canada.

[64] The trial judge then told the jury that the "real issue" they had to determine was whether Gopie and Sargeant were members of that conspiracy. He explained steps two and three of Carter, which would enable them to decide that matter.

[65] The trial judge instructed the jury that for a person to be a member of a conspiracy, it is "essential" that they have an understanding of the unlawful nature of the plan and voluntarily and intentionally join in it. He stated that, in any case, the person must "actually agree and intend to agree to achieve the common unlawful purpose". He stressed that "mere knowledge" of the common unlawful purpose did not make a person a member of a conspiracy and that "merely being present when something happens, merely acting in the same way as others, or merely associating with others who are said to be members of a conspiracy does not prove that a person has joined in the agreement with knowledge of its nature and purpose."

[66] The trial judge then instructed the jury to consider Gopie and Sargeant separately at step two of the Carter analysis – only the evidence about what each said and did could be considered to determine whether that accused was probably a member of the conspiracy.

[67] The trial judge then reviewed the relevant evidence for Gopie and Sargeant separately.

[68] With respect to Gopie, the trial judge noted, among other things, that: Gopie's involvement began in early or mid-November 2009 after the plan between Wilson and Fraser became firm; when Fraser and Wilson met at McDonald's, Gopie drove Wilson to the meeting, using Wilson's car; Gopie also drove Wilson, in Wilson's car, to Fraser's residence and then to the printing shop and a bank; Gopie stayed in the same Montreal motel as Wilson and Fraser on the weekend that Fraser flew from Montreal to St. Maarten; Gopie (and others) attended at the airport with Fraser to see her off on her trip to St. Maarten; Gopie drove Fraser's car while she was in St. Maarten and when she returned, Gopie (and others) went to the airport to pick her up; on the way back to the Montreal motel, Gopie told Wilson to leave Fraser alone when she was complaining about her "lost" luggage; Gopie (and others) stayed at the motel during the period that Fraser was trying to retrieve her luggage; and, Gopie accompanied Fraser to the airport when she went to try and get her "lost" luggage.

[69] After reviewing the evidence relevant to Gopie, the trial judge reviewed for the jury the relevant evidence of Sargeant's own acts and words.

[70] Following that, the trial judge instructed the jury on step three of Carter. He explained that if the jury concluded, on the evidence of each accused's own words and conduct, that they were probably members of the conspiracy, they had to go on to determine whether the Crown had proven beyond a reasonable doubt that Gopie and Sargeant were members of the conspiracy.

[71] The trial judge carefully explained the legal parameters circumscribing what other evidence the jury could consider in making that determination. He followed with a review of the evidence that the jury could consider, in addition to that which he had already reviewed with them. In this review of the relevant evidence, the trial judge thoroughly described the cross examination of each of Fraser and Sargeant and, in so doing, he provided the defence position and context for Gopie's actions which Gopie now complains are missing in the instruction at step two of Carter.

[72] It is within this context that I return to a consideration of Gopie's complaint about the jury instruction at step two of Carter. As Gopie concedes, the trial judge's instructions made clear to the jury the factual issue it had to decide: based on Gopie's own acts and words, was he probably a member of the conspiracy? As well, Gopie makes no complaint about the instruction on the law applicable to that issue. I note also that immediately prior to setting out the relevant evidence of Gopie's acts and words, the trial judge instructed the jury that mere knowledge of the common unlawful purpose was not sufficient nor was mere presence or mere association with others who were members of the conspiracy. In this context, I simply see nothing in the contention that the jury charge was inadequate at step two of Carter.

[73] The instructions gave the jury the tools it needed to determine the issue based on the evidence. The fact that some of the contextual considerations associated with that evidence were amplified in the instruction at step three of Carter does not mean that the instruction at step two was flawed.

[74] Accordingly, I would dismiss this ground of appeal.

3. Was the Application Wrongly Decided?

Overview

[75] With the exception of this ground of appeal, to avoid confusion, I have dealt with the Gopie and Sargeant appeals separately. However, on this ground, Gopie and Sargeant are similarly situated (both are the appellant) and advance similar arguments. For that reason, I deal with their appeals against the dismissal of the Application together.

[76] It took 43.5 months from when Gopie and Sargeant (the "appellants") were charged to the completion of their trial. Gopie and Sargeant say this delay was unreasonable and a breach of their rights under s. 11(b) of the Charter under both the new Jordan[2] framework and the former Morin one. They ask this court to set aside the dismissal of their Application, grant the Application and make an order staying the proceedings.

[77] The Crown submits that when the time period is properly assessed for defence delay, the Net Delay is below the 30-month ceiling and is presumptively reasonable. Alternatively, it says the delay is justified as a transitional exceptional circumstance.

[78] I conclude that the delay in this case is justified. To explain how I reach this conclusion, I will: (a) review the factual background relevant to the Application; (b) summarise the application judge's decision; (c) set out the Jordan framework; and (d) apply the Jordan framework to this case.

(a) The Factual Background for the Application

[79] The information charging the appellants with the offences was sworn on July 8, 2010. The jury rendered its verdict on February 21, 2014, approximately 43.5 months later.

[80] Following the swearing of the information, various procedural steps took place: counsel were retained; bail hearings were held; disclosure was provided; and judicial pre-trials were conducted.

[81] At a judicial pre-trial on October 29, 2010, the Crown advised that she intended to rely on s. 540(7) of the Criminal Code in calling evidence relating to the appellants' arrest, and further indicated she would call only one witness, Fraser. The parties estimated that the preliminary inquiry would take 1.5 days and January 17 and 20, 2011, were set aside for it.

[82] On January 17, 2011, the Crown announced that she would call two civilian witnesses – Fraser and a travel agent – in addition to police officers who handled the luggage and a customs officer. Certain disclosure related to these new witnesses had not been provided. The preliminary inquiry judge suggested the parties use the scheduled time to deal with Fraser's evidence, the primary civilian witness. However, ultimately, all counsel asked for an adjournment of the preliminary inquiry. The Crown agreed to release the appellants on bail. Two days of court time were lost. The matter was adjourned to February 11, 2011, for a pre-trial.

[83] On February 11, 2011, a new preliminary inquiry date could not be set because counsel for Wilson, a co-accused at that time, had not provided his available dates. The pre-trial was adjourned to February 25, 2011, at which time the parties set aside two days for the preliminary inquiry. The court had availability in March, but the first available dates for all parties were July 14 and 15, 2011.

[84] On July 14, the first day of the preliminary inquiry, it became apparent that the parties had underestimated the time required for the preliminary inquiry, given the number of witnesses the Crown planned to call and that multiple defence counsel would be cross-examining the witnesses. The parties sought additional days to complete the preliminary inquiry. The court's first available date was July 28, 2011, the first available date for the Crown was December 2, 2011, and the first available date for the accused was January 11, 2012.

[85] Two additional days were set to continue the preliminary inquiry: January 11 and 23, 2012. A further two days were scheduled to complete the preliminary inquiry: January 24 and February 8, 2012.

[86] The preliminary inquiry continued on January 11 and 23, 2012. On January 24, after reviewing some new disclosure, the accused advised that continuity of exhibits was now in issue. The case was adjourned to February 8, 2012, to allow the Crown to call additional witnesses on the issue of continuity.

[87] At the end of the sixth day of the preliminary inquiry (February 8, 2012), the accused advised that they wanted to hear from another police officer. The parties also had not yet completed submissions on committal. The court had availability to continue the preliminary inquiry on February 21, but the first available date for the parties was April 20, 2012. The appellants were committed to stand trial on April 20, 2012.

[88] The parties made their first appearance in the Superior Court of Justice on May 18, 2012. On that date, the appellants' co-accused Wilson did not attend court as he had absconded during the preliminary inquiry. A bench warrant was issued for his arrest. The matter was adjourned to May 30, 2012, for a judicial pre-trial.

[89] On May 30, 2012, the judicial pre-trial was again adjourned (to June 8, 2012) to set a trial date.

[90] On June 8, 2012, a trial date was set for November 13, 2012. The trial was scheduled to run for six weeks. Neither the Crown nor the accused indicated availability earlier than November 13, 2012.

[91] At a judicial pre-trial on July 24, 2012, Gopie's counsel advised that he had inadvertently double-booked the scheduled November 13, 2012 trial date. The trial date was, therefore, vacated. That day, the appellants also advised that they would bring a s. 11(b) application. The application was scheduled to be heard on the court's first available date of December 3, 2012. Three days were also selected for other pre-trial motions, beginning on January 7, 2013. The appellants did not have a clear six-week time period for trial before February 4, 2013, so the trial was scheduled to begin on February 6, 2013.

[92] On November 5, 2012, the appellants abandoned their s. 11(b) application which had been scheduled for December 3, 2012. They gave no reason for abandoning it.

[93] At a judicial pre-trial in January 2013, counsel for the co-accused Gittens advised that, due to his March break vacation, he could not continue the trial if a verdict was not reached prior to March 14, 2013. The issue of re-election was discussed. Gittens confirmed she wanted a trial by judge and jury.

[94] The pre-trial motions that had been scheduled to begin on January 7, 2013, were adjourned to February 6, 2013. On that date, the Crown advised that she had just received the accuseds' motion materials that morning and sought a five-day adjournment to respond. The matter was adjourned to February 11, 2013.

[95] On February 11, 2013, the Crown sought and was granted an adjournment because a key police witness on the motions was unavailable. The Crown had agreed, following the preliminary inquiry, to have this witness available for examination for discovery. However, efforts to make those arrangements had failed. The pre-trial motions were rescheduled to February 22, 2013.

[96] On February 22, 2013, the police officer was again not available. The matter was adjourned to March 1, 2013, as a set date.

[97] On March 1, 2013, the appellants again advised the court that they would bring a s. 11(b) application. (It is this application that was defined, above, as the "Application"). The dates of June 12 and 13, 2013, were set aside for it and other pre-trial motions were set to begin on August 6, 2013.

[98] At a judicial pre-trial on May 17, 2013, counsel for Gopie asked to adjourn the Application (scheduled for June 12 and 13) due to a conflict in his schedule. The Application was adjourned to August 6 and 7, 2013, and the pre-trial motions that had been scheduled for that week were rescheduled to begin on the first day of the trial (January 6, 2014).

[99] There were numerous judicial pre-trials held in July and August of 2013, concerning the Application. On the appearances on May 17, July 19, July 23, August 6 and August 15, transcripts necessary for the Application remained outstanding. The Application was adjourned to October 7 and 15, 2013.

[100] The Application did not proceed on October 7, 2013. At an appearance on September 23, 2013, the Crown advised that the appellants' Application materials were late and some transcripts were still missing. The hearing dates of October 7 and 15, 2013, were vacated and the matter was rescheduled to December 2 and 3, 2013.

[101] From December 2, 2013, to January 6, 2014, the parties were preparing for trial and the Application was argued.

[102] The trial commenced on January 6, 2014, and ended on February 14, 2014.

(b) The Application Judge's Decision

[103] The application judge found the total delay from the time the appellants were charged to the anticipated completion of trial was 1,324 days or 43.5 months.

[104] He rejected the appellants' submission that this was a routine drug importation case. He described it as a complex case involving multiple accused, border officials and RCMP officers from two provinces (Ontario and Quebec), and voluminous disclosure. He took judicial notice of the fact that it is not a common occurrence in a drug importation case for the accused to include both the alleged drug couriers and the alleged masterminds behind the transaction. He also noted that the reasons for the delay in this case were interrelated and interwoven, with a series of different and concurrent factors causing the same period of delay. Where the reasons for delay were attributable to both the Crown and the accused, he treated the delay as neutral.

[105] At para. 147 of his reasons for decision, the application judge summarized his allocations for the delay as follows:

(i) Inherent time requirements:
a. Ontario Court of Justice		381 days
b. Superior Court of Justice		253 days
Total		634 days
(ii) Actions of the Accused:
a. Ontario Court of Justice		14 days
b. Superior Court of Justice		83 days
Total		97 days
(iii) Actions of the Crown:
a. Ontario Court of Justice		25 days
b. Superior Court of Justice		18 days
Total		43 days
(iv) Limits on Institutional Resources:
a. Ontario Court of Justice		34 days
b. Superior Court of Justice		250 days
[Total]		284 days
(v) Other reasons for the delay: Neutral Delay
a. Ontario Court of Justice		198 days
b. Superior Court of Justice		68 days
Total		266 days

[106] This summary flowed from the following findings of the application judge:

• July 8, 2010 to October 29, 2010 – 113 days – intake period/inherent time requirements.

• October 29, 2010 to January 17, 2011 – 10 days institutional delay and 70 days neutral time. At the judicial pre-trial on October 29, the court offered nine dates for the preliminary inquiry. The Crown and the appellants were unavailable on the first available dates offered by the court: November 8 and 9, 2010. The application judge attributed 10 days as institutional delay. He attributed the 70 days from November 8 to January 17 as neutral because it resulted from finding court dates suitable for all parties.

• January 17, 2011 to July 14, 2011 – 25 days Crown delay, 14 days defence delay, 11 days institutional delay and 128 days neutral time. The application judge attributed 25 days to the Crown for delay because of the Crown's change in strategy, necessitating an adjournment. He attributed 14 days to defence delay resulting from counsel's failure to provide his available dates at the February 11 pre-trial. He attributed 11 days from February 25 to March 8, 2011 as institutional delay because the latter date was the court's first available date for the preliminary inquiry. He attributed 128 days, from March 8 to July 14, 2011, as neutral, because they arose from difficulties in aligning the schedules of multiple counsel.

• July 14, 2011 to April 20, 2012 – 268 days inherent time requirements and 13 days institutional delay. The application judge found that because both the Crown and defence had made an unrealistic estimate for how long the preliminary inquiry would take, the 193 days from July 14, 2011, to January 23, 2012, were attributable to inherent time requirements. He attributed 15 days from January 24 to February 8, 2012, as inherent time requirements because the issues which arose on January 24, 2012, necessitating further time for the preliminary inquiry, were new issues that could not have been anticipated. He attributed 13 days, from February 8 to February 21, 2012 (the first date available to the court to continue the preliminary inquiry), to institutional delay. Finally, the application judge attributed 59 days, from February 21 to April 20, 2012, as inherent time requirements to complete the preliminary inquiry.

• April 20, 2012 to November 13, 2012 – 179 days inherent time requirements and 28 days institutional delay. The application judge attributed the 28 days from April 20 to May 18, 2012 (the first assignment court date offered by the Superior Court of Justice) as institutional delay. He found that from May 18 to June 8, 2012, the parties were preparing for the six-week trial and he attributed that 21 day period as inherent time requirements. The application judge attributed the 158 days from June 8 (the judicial pre-trial) to November 13, 2012 (the date set for trial) as inherent time requirements.

• November 13, 2012 to February 6, 2013 – 83 days defence delay and 2 days institutional delay. In July, counsel for Gopie advised that, because of other commitments, he would not be available for trial until February 4, 2013. The first available court date was then February 6, 2013. The application judge attributed the 83 days from November 13, 2012, to February 4, 2013, as defence delay, and the 2 days from February 4 to 6, 2013, as institutional delay.

• February 6, 2013 to February 14, 2014 – 61 days neutral time, 18 days Crown delay, 220 days institutional delay and 74 days inherent time requirements. The application judge attributed the five days from February 6 to 11, 2013, as neutral time because while the appellants' motion materials were deficient, there were also outstanding transcripts from the preliminary inquiry required for those motions. He attributed the 18 days from February 11 to March 1, 2013, when the Crown's witness was unavailable, to Crown delay. The application judge attributed the 158 days from March 1 to August 6, 2013, as institutional delay. Further, he found that even though the period from August 12 to January 6, 2014, would ordinarily be considered Crown delay (the court was available earlier but the Crown was not), other events affected this period of delay. In particular, at a judicial pre-trial on May 17, 2013, counsel for Gopie requested an adjournment of the Application (scheduled for June 12 and 13, 2013) because of a conflict in his schedule. The Application was adjourned to August 6 and 7, 2013; the pre-trial motions scheduled for that week were then rescheduled to begin on the first day of the trial (January 6, 2014). The Application was later adjourned to October 7 and 15, 2013. The application judge attributed the 62 days from August 6 to October 7, 2013, as systemic/institutional delay due to missing transcripts. The Application did not proceed on October 7, 2013, and was rescheduled to December 2 and 3, 2013. The application judge attributed the 56 days from October 7 to December 2, 2013, as neutral because it was the result of the accused failing to file materials on time and missing transcripts. The application judge attributed the 35 days from December 2, 2013, to January 6, 2014, (to prepare for trial and to hear the Application) as inherent time requirements. Finally, he attributed the 39 days from January 6 to February 14, 2014, as inherent time requirements.

[107] The application judge noted that the combined institutional and Crown delay in the Ontario Court of Justice was 59 days (which was within the Morin guideline of 8 to 10 months in provincial court), and 268 days in the Superior Court of Justice (which exceeded the Morin guideline of 6 to 8 months by 10 days).

[108] In terms of prejudice, the application judge considered the appellants' evidence of alleged prejudice they faced as a result of the delay, as well as their efforts to move the matter forward. He found that, based on their inaction, the appellants had acquiesced to the pace of the case. In particular, he held that the appellants: were complicit in underestimating the time for the preliminary inquiry; failed to use the first day of the original preliminary hearing to cross-examine Fraser, the key Crown witness; and, importantly, failed to follow the protocol established in Brampton to ensure the timely production of transcripts. Further, the application judge found that the appellants were not ready for trial on November 13, 2012, and could not have completed a six-week trial without interruption had it commenced on February 6, 2013.

[109] The application judge concluded that the appellants had failed to establish that their s. 11(b) rights were infringed.

(c) The Jordan Framework

[110] Since the Application was decided, the Supreme Court released Jordan, which created a new framework for s. 11(b) applications. The new framework applies to any case in the justice system when Jordan was released. Consequently, this court must apply the Jordan framework to determine whether the Application was wrongly decided, as the appellants allege.

[111] The Jordan framework is based on ceilings beyond which delay is presumptively unreasonable. Because this case was tried in the Superior Court, the presumptive ceiling is 30 months. The following steps determine whether the delay in this case exceeds that ceiling and, if it does, whether the delay is nonetheless reasonable.

[112] The first step is to calculate the total delay from the charge to the actual or anticipated end of trial.

[113] Next, defence delay must be subtracted from the total delay, leaving the "Net Delay". Defence delay has two components: that arising from defence waiver and, that caused solely by the conduct of the defence ("defence-caused delay"). The latter 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 straightforward examples of defence-caused delay (Jordan, at paras. 60-67).

[114] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable (Jordan, at para. 68).

[115] To rebut the presumption of unreasonableness, the Crown must establish the presence of exceptional circumstances. Exceptional circumstances are those which lie outside the Crown's control, in that they are: (1) reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel could not reasonably remedy the delay emanating from the circumstances once they arose. Such circumstances need not be rare or entirely uncommon (Jordan, at paras. 68-69).

[116] Generally, exceptional circumstances fall under two categories: (1) discrete events; and (2) particularly complex cases. An illustration of a discrete event is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, at paras. 71-72).

[117] The period of delay caused by discrete events must be subtracted from the Net Delay – yielding the "Resulting Delay" – for the purposes of determining whether the presumptive ceiling has been reached. If the Resulting Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex, such that the time the case took was justified and the delay reasonable (Jordan, at paras. 75-80).

[118] If the Resulting Delay falls below the presumptive ceiling, the onus shifts to the appellants to show that the delay is unreasonable. Stays beneath the ceiling are expected to be rare and limited to clear cases (Jordan, at paras. 82-83).

[119] For cases in the justice system on the date of Jordan's release, a "transitional exceptional circumstance" applies if the Crown satisfies the court that the time the case took is justified based on the parties' reasonable reliance on the previous state of the law. This is a contextual assessment, sensitive to the manner in which the Morin framework was applied and to the fact that the parties' behaviour cannot be judged strictly against a standard of which they had no notice when the proceedings began. 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, at para. 96. See also R v. Pyrek, 2017 ONCA 476, at paras. 9, 28).

(d) The Jordan Framework Applied

[120] The parties agree that the total delay in this case was approximately 43.5 months and that neither Gopie nor Sargeant waived any periods of delay. They do not agree, however, on how much of the delay is defence-caused. There are two components to their disagreement. First, they disagree on how to attribute delay caused by the actions of a co-accused. Second, they disagree on whether other delay – such as that associated with missing transcripts – should be treated as defence-caused delay.

[121] Gopie and Sargeant submit that neither exceptional circumstances nor transitional exceptional circumstances justify the delay in this case. The Crown argues that the Net Delay was less than 30 months but, alternatively, the delay is justified under transitional exceptional circumstances.

[122] Therefore, in applying the Jordan framework, I must determine: (i) how to attribute delay caused by the actions of a co-accused; (ii) whether other delay in this case should be treated as defence-caused delay; (iii) the Net Delay for each of Gopie and Sargeant; (iv) whether exceptional circumstances justify the delay; and (v) whether transitional exceptional circumstances justify the delay.

(i) Delay Caused by the Actions of a Co-Accused

The Parties' Positions

[123] Gopie accepts responsibility for only 83 days of delay, the period from November 13, 2012 (the scheduled first day of trial) to February 4, 2013 (the first date that Gopie's counsel was available to begin trial). As noted above, Gopie's counsel was unavailable for the scheduled first day of trial because he had inadvertently double-booked himself.

[124] Sargeant says that no delay is attributable to him. He submits that the application judge erred in attributing to him two periods of delay caused by his co-accused. The first period is from February 11 to 25, 2011. On February 11, the parties attended a pre-trial to set new dates for the preliminary inquiry. However, counsel for the co-accused Wilson did not provide the court with dates so the matter had to be adjourned to February 25, 2011, to set new dates. The second period is the 83 days for which Gopie accepts responsibility.

[125] Sargeant argues that as neither of these two time periods is attributable to his conduct, they should not serve to mitigate the delay in his case. Citing R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 373, Sargeant contends that "[a] joint trial is not some magic wand the Crown can wave to make a co-accused's s. 11(b) rights disappear."

[126] The Crown points out that had the trial gone ahead as scheduled – beginning on November 13, 2012, and running for six-weeks – it would have finished before the end of 2012, well within the Jordan presumptive 30-month ceiling. The trial had to be rescheduled because Gopie's counsel had double-booked the first trial date. The court then had to adjourn the February 2013 trial date to accommodate the holiday plans of Gittens' counsel. The Crown contends that the inevitable delays caused by accommodating multiple accused counsels' schedules should be borne by the appellants. It submits that "delay by one accused should be attributed to all", except in rare instances where one accused is causing such lengthy delays that severance is required.

[127] The Crown relies on R. v. Brisset, 2017 ONSC 401, 373 C.R.R. (2d) 170, and this court's decision in R. v. L.G., 2007 ONCA 654, 228 C.C.C. (3d) 194. At para. 63 of L.G., this court said that delay caused by a co-accused is ordinarily classified as neutral under Morin because "it is in the interests of justice that individuals charged jointly with an offence be tried together." The Crown argues that joint trials are at risk if L.G. is no longer good law.

Analysis

[128] I do not agree with the Crown that delay by one accused should be attributed to all. Rather, an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused. This conclusion flows from Jordan and the weight of the jurisprudence. Accordingly, I would not attribute delay caused by the actions of a co-accused to Sargeant or Gopie.

[129] I begin by acknowledging that Jordan does not expressly address this issue. However, the Jordan framework is based on the concept of accountability, focusing on the conduct of individual players in the justice system. Furthermore, when discussing defence-caused delay, the court in Jordan directs an assessment of the "accused's acts" and whether his or her acts directly caused delay, or can be shown to be a deliberate and calculated tactic to delay the trial (Jordan, at para. 63). This language suggests that the conduct of the accused must be looked at on an individual basis and attributed accordingly.

[130] The Supreme Court recently provided further guidance on the concept of defence-caused delay in R. v. Cody, 2017 SCC 31. At para. 30 of Cody, the Court emphasized that the only deductible defence-caused delay is that which "is solely or directly caused by the accused person and flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges".

[131] Further, while it pre-dated Jordan by a week, the Supreme Court's decision in R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, rev'g 2015 ABCA 409, 609 A.R. 253, is also instructive. A majority of the Alberta Court of Appeal upheld the trial decision which found the delay was reasonable. O'Ferrall J.A. dissented, saying that the trial judge had erred by counting delay caused by Vassell's co-accused against Vassell on his s. 11(b) application.

[132] The Supreme Court approved of the reasoning of O'Ferrall J.A. and allowed the appeal. The Court commented, at paras. 6-7:

[I]t was clear from the outset that the delay caused by the various co-accused not only prevented the Crown's case from moving forward, it also prevented Mr. Vassell from proceeding expeditiously, as he wanted. Importantly, this is not a case where Mr. Vassell simply did not cause any of the delay; rather, it is one in which he took proactive steps throughout, from start to finish, to have his case tried as soon as possible. In this regard, his counsel reviewed disclosure promptly, pushed for a pre-trial conference or case management, worked with the Crown to streamline the issues at trial, agreed to admit an expert report, made the Crown and the Court aware of s. 11(b) problems, and at all times sought early dates.

[…] the Crown cannot close its eyes to the circumstances of an accused who has done everything possible to move the matter along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates.

[133] This court's decision in Manasseri is also consistent with an individual approach to the attribution of defence-caused delay. At para. 329 of Manasseri, Watt J.A. assessed what amount of time should be deducted from the total delay as defence-caused delay, saying:

The record does not reveal any occasion on which the court was available, the Crown and co-accused ready to proceed but Kenny was unavailable or not ready to proceed. Kenny brought two pre-trial motions. The first sought severance: the second, which was brought twice, a stay of proceedings. Neither was frivolous. Neither was lengthy. Any rescheduling of the hearing dates originated with others, not Kenny. [Emphasis added.]

[134] Fairburn J. (as she then was) addressed this issue in R. v. Ny, 2016 ONSC 8031, 343 C.C.C. (3d) 512. She rejected the Crown's position that when one accused causes delay in a case involving jointly-charged accused, the delay is attributable to each of the accused as defence delay. Her analysis for concluding that the assessment of defence delay must be done on an individualized basis is persuasive. At paras. 37-38 she stated:

As for the second component of defence delay, it requires an assessment of the "accused's acts" and whether his or her acts directly caused the delay: Jordan, at para. 63. It also requires an assessment of whether "the acts of the accused" can be shown to be a "deliberate and calculated tactic employed to delay the trial". Like waiver, these are concepts attaching to a specific individual and his or her decisions to act in a certain way.

The inquiry into whether a party is the sole cause of delay is not conducive to then turning around and cloaking others with that delay. A decision by an accused to waive the right to a timely trial, or to behave indifferently toward the right through the actions he takes, is an individual choice. It is a choice that cannot be directly visited on a co-accused in the sense that the net delay faced by the co-accused will change. [Cited in original.]

[135] See also R. v. Curry, 2016 BCSC 1435, 360 C.R.R. (2d) 273.

[136] In my view, attributing to an accused the delay caused by the actions or inactions of a co-accused is inconsistent with the approach and language of Jordan. That does not mean, however, that delay caused because the matter proceeded jointly against multiple accused is irrelevant to the s. 11(b) assessment under Jordan. As I discuss below, delays arising in the case of jointly-charged accused can give rise to exceptional circumstances under the Jordan framework.

[137] Before concluding on this issue, I offer this comment concerning delays caused by a co-accused and the implications of the Jordan decision on this court's decision in L.G.

[138] Pre-Jordan, co-accused delay was considered neutral delay in the s. 11(b) assessment; it was not treated as defence delay. The rationale was that, generally speaking, it is in the interests of justice that individuals charged jointly with an offence be tried together. A single trial for two or more accused persons generally conserves judicial resources, avoids inconsistent verdicts, and avoids witnesses having to testify more than once: see L.G., at para. 63, quoting from R. v. Whylie, 207 C.C.C. (3d) 97 (Ont. C.A.), at para. 24.

[139] Importantly, however, as this court recognized in Whylie and R. v. Heaslip, 9 C.C.C. (3d) 480 (Ont. C.A.), the Crown's legitimate interest in having jointly-charged accused tried together must be balanced against the accused's constitutional right to be tried within a reasonable amount of time. As Martin J.A. stated in Heaslip, at pp. 496-497:

The Crown's desire to ensure that all the accused be tried together was, of course, entirely proper, but it imposed a corresponding obligation on the Crown to take appropriate measures to ensure that Garofoli's motion proceeded expeditiously, and to move to have the application dismissed if Garofoli's counsel did not proceed promptly.

[140] This balancing of interests is evident in R. v. Topol, 2008 ONCA 113, 236 O.A.C. 1, aff'g 160 C.R.R. (2d) 100 (S.C.), where this court upheld the decision of Nordheimer J., who found that at least some of the delay caused by scheduling difficulties among numerous counsel had to be borne by the Crown due to the Crown's consistent consent to delays and initial failure to seek severance for Topol.

[141] Moreover, as the Supreme Court noted in R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 18, whether the accused's right to be tried within a reasonable time would be prejudiced by continuing with a joint prosecution is one of the factors for consideration in determining if, in the interests of justice, co-accused should be severed.

[142] In conclusion on this point, while under the Jordan framework the category of "neutral" time no longer exists, in my view, the principles set out in L.G. still apply. As I discuss more fully below, provided it is in the best interests of justice to proceed jointly against co-accused, delays resulting from the fact that there are jointly-charged accused are considered under the exceptional circumstances analysis in Jordan.

(ii) Should Other Delay be Treated as Defence-Caused Delay?

The Parties' Positions

[143] Sargeant argues that the application judge wrongly treated two periods of delay as neutral, having found that they were the result of a combination of institutional delay and defence delay. Sargeant says they should have been treated as institutional delay because they were caused by the system's failure to produce transcripts in a timely fashion.

[144] The two time periods are the 5 days from February 6 to 11, 2013, and the 56 days from October 7 to December 2, 2013. The first period was a five-day adjournment of the pre-trial motions because of the lateness of the appellants' motion materials and the unavailability of the preliminary inquiry transcripts needed for those motions. The second period arose because the Application, which was scheduled to be heard on October 7, 2013, had to be rescheduled to December 2 and 3, 2013, because transcripts were still missing and the appellants had filed their Application materials late.

[145] Gopie adopts Sargeant's position on this matter.

[146] The Crown argues that the application judge failed to appreciate that the s. 11(b) transcripts were missing because the appellants had not ordered them, not because of institutional delay in producing the transcripts. The Crown says that if the application judge had properly assessed the evidence, he would have classified most of the delay from November 13, 2012 (the first scheduled trial date) to January 6, 2014 (the third scheduled trial date and the actual first day of trial) as defence-caused delay. The Crown says that starting with the first trial dates having to be adjourned because Gopie's counsel was double-booked, the appellants continued to delay progress because they failed to order the necessary transcripts, leading to repeated adjournments.

Analysis

[147] The parties point out that much of the application judge's time allocation for the period from February 6, 2013, onward was driven by his determination that the delays were caused by a mixture of defence delay (delivering incomplete and/or late materials) and institutional delay (resulting from missing transcripts).

[148] I acknowledge that the application judge's findings should be afforded deference. However, at para. 32 of Cody, the Supreme Court makes it clear that both the substance and procedure of defence conduct is to be considered, saying:

Defence conduct encompasses both substance and procedure. The decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. [Emphasis in original.]

The Court continued at para. 33, citing Jordan:

Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advance their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and … us[e] court time efficiently". [Citations omitted.]

[149] Accordingly, in my view, the procedural history related to the transcripts must be reviewed.

[150] At the assignment court appearance on August 10, 2012, the presiding judge reminded the parties about the protocol in place with respect to s. 11(b) applications in Brampton, particularly as it concerned the ordering of transcripts. The court stated, "[i]f you are going to be ordering transcripts, given the number of transcripts that are ordered in this building each month, and I believe it is about 1,700, ordering them two weeks before you need them is not going to work. You are going to have to order them as soon as the potential for the issue arises." This was approximately four months before the appellants were scheduled to argue their first s. 11(b) application, which was set for December 3, 2012. It will be recalled that the appellants abandoned that application and, on the record, gave no reason for so doing.

[151] The issue of the s. 11(b) application next arose at the assignment court appearance on March 1, 2013. Counsel were asked if the necessary transcripts had been ordered. Gopie's counsel responded, "No, there are going to be a lot of transcripts … so we're going to need a fair bit of time for that". Gittens' counsel then confirmed that the appellants had thus far ordered only the preliminary inquiry transcripts; they had not ordered the other required Ontario Court of Justice transcripts and they did not have any Superior Court transcripts either.

[152] On the next appearance, Gopie's counsel provided the court with an update on the transcripts for the s. 11(b) application. Counsel advised "[w]e've ordered some materials and we haven't really received anything yet, and within the next couple of weeks we'll be in a much better position to give Your Honour a more firm understanding of how things are coming along." When the parties next appeared in assignment court on April 5, 2013, Gopie's counsel simply asked to come back in May to update the court on the Application but provided no details of the status of the transcripts.

[153] On May 10, 2013, the parties returned to assignment court. Hill J. again referred them to the Brampton protocol. Gittens' counsel advised that it had been "kind of left up to [Gopie's counsel] to order all the transcripts." He then stated, "[Gopie's counsel] contacted counsel … a couple of days ago to indicate that there [were] some problems with respect to transcripts and his availability for those 11(b) motions." Hill J. asked how many transcripts were missing and Gittens' counsel stated, "I think from what I understand all of them." The court adjourned the matter for one week, but noted that the court required an explanation for "how an 11(b) application could have been set between the 12th and 13th [of June] with no transcripts having been ordered. That's just nonsense."

[154] On May 17, 2013, Gopie's counsel advised that he had a scheduling conflict and requested an adjournment of the Application. No mention was made of the outstanding transcripts.

[155] On the record, it is apparent that the vast majority of the transcripts for the Application were ordered on May 14, 2013, just three days before the June Application date was adjourned at the appellants' request, and almost a year after the first dates for trial and the first s. 11(b) application had been set.

[156] As the Supreme Court noted at para. 32 of Cody, "[i]rrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay." Bearing that admonition in mind, in my view, much of the delay resulting from the missing transcripts must be attributed to the appellants as defence-caused delay. The appellants were not diligent in ordering and following up on the transcripts. They did not follow the Brampton protocol despite repeated urgings by the court. In the words of Cody, the appellants' conduct exhibited "marked inefficiency or marked indifference toward delay."

[157] The adjournments triggered by missing transcripts and late or incomplete materials adversely impacted the progress of the case. In particular, much of the time between March 1, 2013 (when the appellants advised for the second time that they would bring a s. 11(b) application) and December 2 and 3, 2013 (when the Application was finally heard) must be treated as defence-caused delay. While not an exact science, I would attribute seven months of that nine month period as defence-caused delay to both Sargeant and Gopie.

(iii) Net Delay

[158] It will be recalled that Net Delay is calculated by subtracting defence delay from total delay.

[159] For Sargeant, the Net Delay is 36.5 months – 43.5 months of total delay minus the 7 months of defence-caused delay, explained above.

[160] For Gopie, the Net Delay is 33.5 months. From the total delay of 43.5 months, two periods of defence-caused delay must be subtracted. The first is the 3 months of delay which Gopie acknowledges arose because his trial counsel double-booked himself for the first trial date. The second is the 7 months of defence-caused delay, explained above.

[161] In both cases, the Net Delay exceeds the ceiling of 30 months and is therefore presumptively unreasonable.

(iv) Delay Justified by Exceptional Circumstances

[162] As the Net Delay in each case exceeds the presumptive ceiling, it falls to the Crown to rebut the presumption by demonstrating the existence of exceptional circumstances. While the list of exceptional circumstances is not closed, they typically fall into two categories: (i) discrete events; and (ii) particularly complex cases (Jordan, at paras. 68-71).

Discrete Events

[163] While the Crown does not argue that any periods of time constitute discrete events, in my view, the appellants properly concede one month of delay for a discrete event. The period from February 11 to March 1, 2013, was lost because a Crown witness, Officer Terreault, was on medical leave and therefore unavailable for the preliminary inquiry. At the appearance on February 11, Sargeant's counsel stated that there was no lack of diligence on the Crown's part that led to this. The Crown had checked Officer Terreault's availability with the RCMP before booking the date and been assured that she would be there. Sargeant's counsel also advised the court that as soon as the Crown became aware of Officer Terreault's unavailability, she advised defence counsel and made every effort to try to deal with the matter in some other fashion (such as an agreed statement of facts).

[164] I agree this constitutes a discrete event within the Jordan framework. Officer Terreault's unavailability at the preliminary inquiry was reasonably unforeseen and unavoidable and, despite the Crown's best efforts, she could not remedy the resulting delay.

[165] In Cody, at paras. 48 and 64, the Supreme Court clarified that discrete events result in a quantitative deduction of particular periods of time, while complexity of the case is a qualitative assessment. I would, therefore, subtract the one month of discrete delay for the purpose of determining whether the presumptive ceiling was reached in this case.

[166] Accordingly, the Resulting Delay for Sargeant is 35.5 months and for Gopie it is 32.5 months. As both periods exceed the presumptive 30-month ceiling, I must go on to consider whether the Crown has established that the complexity of this case justifies the time that it took, thereby rendering the delay reasonable.

Complexity

[167] The appellants submit that the delay in this case is not justified because the case was not complex and much of the delay resulted from the Crown's mismanagement of the prosecution and its disorganised approach. They point to such things as: four different prosecuting Crown attorneys carried the case; a lack of timely disclosure; and, the Crown's change in approach to the preliminary inquiry, which led to it having to be rescheduled. Moreover, the appellants argue that the Crown was not vigilant in protecting their s. 11(b) rights, as evidenced by the Crown's decision to proceed against three accused jointly and the resulting difficulties in aligning the schedules of all counsel.

[168] There is some validity to the appellants' submission. Despite that, in my view, the delays arising from the complexity of the case justify the delay.

[169] Delays arising from complexity may justify an otherwise unreasonable delay that exceeds the ceiling (Jordan, at paras. 80-81, 105). The nature of the issues and the evidence drive the complexity analysis under Jordan. Complexity may also arise from proceedings that involve more than one accused. As noted in Jordan, at para. 77, "[p]roceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case." The Supreme Court underlined this point at para. 6 of Vassell, stating that "[i]n many cases, delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial."

[170] Fairburn J. aptly summed up this point in Ny, at para. 47, stating:

[T]he concept of "reasonable time" within s. 11(b) may fluctuate depending on whether accused are standing alone or together. Provided it is in the interests of justice to proceed jointly, delay above the ceiling may reflect the realities of life in a joint trial and transform an otherwise unreasonable delay into a reasonable one.

[171] There may come a time when the interests of justice are no longer served by proceeding jointly, including where s. 11(b) rights are in jeopardy. The Crown has an obligation to continually assess whether the decision to proceed jointly remains in the best interests of justice. One accused cannot be held "hostage" by his co-accused's actions or inactions (Vassell, at para. 7; and Manasseri, at para. 323).

[172] The reasonableness of the delay above the ceiling must be assessed based on the circumstances of the case. I accept the application judge's finding that this was not a routine case and had inherent complexity due to voluminous disclosure, out-of-province witnesses, multiple accused, various pre-trial motions, a seven-day preliminary hearing and a month-long trial. Although the application judge used Morin principles in making his finding that the case was complex, using the Jordan framework, I am satisfied that this was a complex case.

[173] Further, at para. 89 of Jordan, Moldaver J. said that local and systemic circumstances play a role in assessing the reasonableness of the length of time it took to get the matter to trial. That consideration is relevant in this case as evidenced by the Brampton protocol concerning transcripts and s. 11(b) applications – a protocol clearly designed to address systemic pressures.

[174] The proceedings were undoubtedly complicated by the fact that the case involved multiple accused. However, in this case, the interests of justice favoured proceeding against the appellants jointly. The core allegations involved the accused having worked together to import cocaine through the Montreal airport. Importantly, as the application judge found at para. 120 of his reasons: "This is not a case where severance was requested or where severance was an option." While Sargeant occasionally asserted an interest in moving the matter along, delay issues were not raised, other than when counsel advised the court of their intention to bring a s. 11(b) application. Nor was severance ever requested in the lead up to trial.

[175] Furthermore, on the findings of the application judge, instead of being proactive, the appellants were complacent and/or inactive when it came to ensuring that the case moved forward expeditiously.

[176] Thus, in my view, while the Crown could have been more expeditious, in light of the nature of the evidence, the issues and the number of accused, the time it took for this matter to conclude was not unreasonable.

(v) Delay Justified as a Transitional Exceptional Circumstance

[177] In my view, the delay is also justified when analyzed as a Jordan transitional exceptional circumstance.

[178] In R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, the majority decision discussed, as the relevant considerations informing the transitional exceptional circumstance analysis: (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 any institutional delay; (iv) the defence efforts, if any, to move the case along; and (v) prejudice to the accused.

[179] I explain above why, using the Jordan framework, I find this case to have been complex. I will not repeat that discussion.

[180] The application judge found that the combined institutional and Crown delay in the Ontario Court of Justice in this case fell within the Morin guideline, and exceeded the guideline in the Superior Court of Justice by only a very small margin (ten days). I see no basis for interfering with those findings. In particular, I do not accept that the application judge should have attributed more of the time he characterized as "inherent time requirements" as either institutional or Crown delay.

[181] I also accept the application judge's findings in respect of defence efforts (or lack thereof) to move the case along and prejudice to the appellants. The application judge found that to the extent either Gopie or Sargeant suffered prejudice, there were numerous instances of their inaction that were "inconsistent with a desire to move the matter along". He made specific findings which showed that the appellants had acquiesced to the pace of the case, including that the appellants: were complicit in underestimating the time for the preliminary inquiry; failed to use the first day of the original preliminary inquiry to cross-examine Fraser, the key Crown witness; were not ready for trial on November 13, 2012, causing it to have to be adjourned; could not have completed a six-week trial without interruption if it had commenced on February 6, 2013, resulting in a further adjournment; and, failed to follow the Brampton protocol that had been designed to ensure the timely production of transcripts, leading to many adjournments.

[182] For these reasons, I conclude that the delay was justifiable as a transitional exceptional circumstance.

The Sentence Appeal

[183] On his sentence appeal, Gopie submits that the trial judge: failed to consider his role in the conspiracy and the lack of evidence in that regard; and, sentenced him on the basis that he had conspired to import cocaine, as opposed to marijuana or some other less harmful narcotic.

[184] I see no basis on which to interfere with the trial judge's findings or the sentence that he imposed. In reaching this conclusion, I am guided by R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11, which provides that except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit. I see no error that had an impact on the sentence nor is the sentence demonstrably unfit.

[185] In relation to Gopie's role in the conspiracy, the trial judge explicitly instructed himself, in accordance with R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, that he had to determine the facts for sentencing independently, if the factual implications of the jury's verdict were unclear. He was not satisfied beyond a reasonable doubt that Gopie was "at the top of the hierarchy as the importer". However, he had "no doubt" that Gopie was "more than tangentially involved", noting that Gopie twice accompanied Wilson and Fraser (along with others) to Montreal and was present throughout this importation of drugs from St. Maarten.

[186] On the matter of the nature of the drug, the fact that Fraser believed she was importing marijuana because that is what Wilson told her is not a basis for the trial judge to find that Gopie was also duped about the nature of the drug. It was Gopie's onus to establish this mitigating circumstance. He did not discharge that onus.

[187] As for whether the nine-year sentence is demonstrably unfit, I begin by noting that the Crown sought a sentence of ten years and the defence submitted that a period of six to eight years was the appropriate range.

[188] While Gopie had no criminal record, at the time of the offence he was on probation and had been in Canada for only two and a half years. The conspiracy was planned and detailed and led to the importation of a large amount of hard drugs – almost eight kilograms of cocaine. And, while Gopie was not found to be at the top of the hierarchy as the importer, as I have explained, it was available to the trial judge to find, as he did, that Gopie's role was more than tangential.

[189] In light of the amount and nature of the drug that was imported and Gopie's role in the conspiracy, the sentence cannot be said to be demonstrably unfit.

Disposition

[190] For these reasons, I would dismiss the appeal against conviction. I would grant leave to appeal sentence but would dismiss that appeal, as well.

"E.E. Gillese J.A."

"I agree. K. van Rensburg J.A."

Brown J.A.: (concurring)

[191] I concur with my colleague that the appeals from conviction and sentence should be dismissed. I agree with her treatment of the issues of unreasonable verdict, adequacy of the jury charge, and sentence. I also agree the application judge did not err in dismissing the s. 11(b) Application.

[192] However, I respectfully disagree with one aspect of her s. 11(b) analysis: where to consider the consequences of delay by a co-accused in the Jordan framework. My colleague would not examine such delay as part of "defence-caused delay," but as a factor in the "exceptional circumstances" analysis of the complexity of the case.

[193] I would adopt a different approach and place the consideration of delay caused by the actions of a co-accused in the "defence-caused delay" part of the Jordan framework. In my view, that approach would more effectively promote Jordan's goal of ridding our criminal justice system of "a culture of complacency towards delay": Jordan, at para. 40.

[194] I do not read Jordan as merely substituting a new way of performing the s. 11(b) judicial days-counting exercise for the old one. Although Jordan directs a change in the mechanics of s. 11(b) numbers-crunching, it does so as a means to an important end – to change courtroom culture in order to accomplish the purpose of s. 11(b), which "is to expedite trials and minimize prejudice and not to avoid trials on the merits": Jordan, at para. 60.

[195] The hard ceilings set by Jordan "will not permit the parties or the courts to operate business as usual. The ceiling is designed to encourage conduct and the allocation of resources that promote timely trials": Jordan, at para. 107. To that end, ridding the criminal justice system of the culture of complacency towards delay requires discarding a deeply entrenched mindset towards the use of litigation time that "rewards the wrong behavior [and] frustrates the well-intentioned": Jordan, at para. 40, citing B.C. Justice Reform Initiative. A Criminal Justice System for the 21st Century: Final Report to the Minister of Justice and Attorney General Honourable Shirley Bond, report by D. Geoffrey Cowper, Q.C., Chair. Victoria: The Initiative, 2012, at pp. 48.

[196] Jordan's new framework seeks to create incentives for both sides and to enhance accountability "by fostering proactive, preventative problem solving": Jordan, at para. 112.

[197] Such problem-solving is the responsibility of all those involved in a criminal case: "[A]ll participants in the justice system must work in concert to achieve speedier trials": Jordan, at para. 116. This collective responsibility of the Crown, defence counsel, judges, and court administrators was repeated by the Court Cody, at para. 1: "[E]very actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person's right to a trial within a reasonable time."

[198] "All participants" and "every actor" include defence counsel. In Cody, the Court stated at para. 35:

All justice system participants — defence counsel included — must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter.

[199] Why the need for such shared responsibility? As the Court stated in Jordan at para. 86, the practical litigation reality is that:

[A] level of cooperation between the parties is necessary in planning and conducting a trial. Encouraging the defence to be part of the solution will have positive ramifications not only for individual cases but for the entire justice system, thereby enhancing — rather than diminishing — timely justice.

[200] Where in this new time-management problem-solving paradigm should the court locate its examination of delay caused by the conduct of a co-accused? To foster the change in litigation culture required to achieve the purpose of s. 11(b) – to expedite trials on the merits – a court should examine such delay when considering the "delay attributable to the defence" in order to determine "net delay." I reach this conclusion for five reasons.

[201] First, achieving change in our litigation culture requires altering the way litigation participants think about an issue. My colleague would treat the consequences of delay by a co-accused under the "exceptional circumstances" rubric of the Jordan analysis. The risk in so doing, in my respectful view, is that defence counsel in joint trials will regard delay by other co-accused as a peripheral, exceptional factor, instead of as a problem that all share a core responsibility to solve.

[202] Second, placing the consideration of delay by a co-accused in "defence-caused delay" will incent counsel for co-accused to remind each other of the need to be part of the systemic solution of securing timely trials. It would operate to decrease the incidence of conduct such as that seen in the present case, described by my colleague in para. 175 of her reasons: "[O]n the findings of the application judge, instead of being proactive, the appellants were complacent and/or inactive when it came to ensuring that the case moved forward expeditiously." Further, increasing the number of defence counsel working to move a case along, notwithstanding the reluctance of some co-accused, will provide case and trial management judges with an additional tool to promote and secure a timely trial of the entire case.

[203] Third, assessing the consequences of delay by a co-accused in this fashion should foster separating the procedural time-management issues in a joint prosecution from the issues concerning the merits of a case. In a joint prosecution, it would foster a sense of common responsibility for the litigation process – moving a case along to a timely disposition on its merits – while leaving each accused free to advance whatever defence on the merits he or she saw fit in the circumstances: whether it be a "one for all, all for one" or cut-throat defence.

[204] Fourth, a somewhat technical point. Assessing the delay of a co-accused under "defence-caused delay" should result in a more transparent quantitative days-counting analysis, rather than the necessarily more opaque qualitative analysis associated with exceptional circumstances complexity.

[205] Finally, I do not see assessing the consequences of delay by a co-accused under "defence-caused delay" as risking visiting the procedural sins of one co-accused on a procedurally innocent co-accused to the prejudice of that accused's individual s. 11(b) rights. On a s. 11(b) application, it would always be open to an accused to point to the tangible evidence of his or her proactive efforts to move the case along to trial in the face of foot-dragging by other co-accused. Evidence about how an accused responded to the delaying conduct of a co-accused would play an important role in assessing the accused's ultimate responsibility for a case's delay, as occurred in Vassell and Manasseri.

[206] Although I would locate the examination of delay caused by a co-accused in "defence-caused delay" instead of exceptional circumstances complexity, I would reach the same result as my colleague: see her discussion of the issue in paras. 126 and 167-176.

[207] Accordingly, I concur with my colleague that Gopie's appeals from conviction and sentence should be dismissed.

Released: September 25, 2017

"David Brown J.A."

Footnotes

[1] R. v. Carter, [1982] 1 S.C.R. 938.

[2] R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.