Her Majesty the Queen v. Rose et al.

[Indexed as: R. v. Rose]

Court and Judges

Court of Appeal for Ontario Strathy C.J.O., Harvison Young and Jamal JJ.A. May 21, 2020 151 O.R. (3d) 1 | 2020 ONCA 306

Case Summary

Charter of Rights and Freedoms — Trial within reasonable time — Accused applying for stay for unreasonable trial delay — Application judge applying Morin guidelines as application pre-dated Jordan — Delay was reasonable under Morin framework and application judge did not err in dismissing the application — Canadian Charter of Rights and Freedoms, s. 11(b).

Criminal law — Evidence — Admissibility of evidence — Evidence of prior convictions — Accused charged with possession of proceeds of crime and money laundering — Crown applying to lead evidence of accused's prior convictions for possession of cocaine for the purpose of trafficking and possession of proceeds of crime — Judge admitting three sets of reasons without balancing probative value against prejudicial effect and without adequate jury instruction — Accused's appeal from conviction allowed and new trial ordered.

Criminal law — Trial — Jury — Selection of jury — One juror excused shortly after jury started hearing evidence — Trial judge substituting excused juror with one of two additional jurors, with second additional juror continuing to hear evidence — At conclusion of evidence, trial judge dismissing second additional juror — Accused's appeal from conviction allowed and new trial ordered — Proper procedure was for trial judge to dismiss one juror at random — Criminal Code, R.S.C. 1985, c. C-46, ss. 652.1(2), 686(1)(b)(iv).

In July 2010, the police executed search warrants at an apartment leased by C and at a house owned by K. C and K were married. The police seized about $20,000 in cash from the apartment. At the house, the police seized 11 safety deposit box keys, a key that was found to unlock the apartment, and a vehicle. The police subsequently located seven safety deposit boxes in K's name containing over $400,000 in cash. C and K were charged with possession of proceeds of crime and money laundering. In July 2015, a pre-trial application resulted in the Crown being permitted to lead evidence of C's 2008 convictions for possession of cocaine for the purpose of trafficking and possession of proceeds of crime. In October 2015, K's application to stay the charges against her for unreasonable trial delay was dismissed. The trial began in March 2017. Shortly thereafter, one of the first 12 jurors selected was excused. The trial judge ordered that the first of two extra jurors -- sworn in as "alternate number one" and "alternate number two" -- would replace the lost juror and that the second alternate would continue to hear evidence. At the end of the evidence and prior to closing addresses to the jury, the trial judge stated, in the jury's absence, that she would be dismissing the second alternate, referring to her as an "additional" juror. The jury convicted on all counts. C and K appealed.

Held, the appeals should be allowed.

The jury was improperly constituted. There was a difference between alternate jurors and additional jurors. Alternate jurors protected against the risk of some jurors becoming unavailable sometime between jury selection and the beginning of the evidence. They were not intended to hear evidence and were excused before the evidence began if a full jury was present without them. Additional jurors protected against the loss of jurors during the course of the evidence and were intended to remain throughout the evidence. Before deliberations, the number of jury members was to be reduced to 12 by randomly dismissing additional jurors. Although the trial judge described the extra jurors as "alternate" she treated them as "additional". However, the judge erred by dismissing the second extra juror rather than randomly selecting a juror to be dismissed as required by s. 652.1(2) of the Criminal Code. Such an error was analogous to errors regarding challenge for cause, Crown stand-asides, static or rotating triers, or the summoning of talesman. It was not a mere irregularity that could be saved by the curative proviso under s. 686(1)(b)(iv). Although there was no suggestion of actual impartiality, the failure to follow the s. 652 procedure caused prejudice by tainting the appearance of jury impartiality. A new trial was ordered.

The judge erred in allowing evidence of the 2008 convictions. At the time of the Crown's application, the parties indicated that they would create an agreed statement of facts. That did not happen, with the result that the trial judge admitted three sets of reasons: reasons for judgment on the 2008 convictions and sentence, reasons by a different judge on a related forfeiture hearing, and an order from the Court of Appeal dismissing C's appeal of his 2008 convictions. The judge erred by admitting those three sets of reasons without balancing their probative value against their prejudicial effect. They contained findings of fact and opinion more prejudicial than probative, so it was difficult to see how the judge could have admitted the reasons if she had conducted the proper balancing exercise. The error was compounded by an inadequate jury instruction as to how the reasons could be used. A new trial was required on that ground as well.

The application judge did not err in dismissing K's delay application. There was a net delay of over 50 months, exceeding the 30-month presumptive ceiling from Jordan. However, all of the circumstances occurred prior to Jordan, with the result that the Crown relied on the transitional exceptional circumstance to apply the Morin analysis. There was institutional delay of 16 months and 12 days awaiting preliminary hearing, awaiting a decision on committal, and awaiting trial. That fell within the 18-month Morin guidelines. The application judge correctly concluded that K did not suffer any specific prejudice, and any inferred prejudice would not outweigh other irrelevant considerations.

Cases Considered:

• R. v. Jordan, [2016] 1 S.C.R. 631, 2016 SCC 27
• R. v. Morin, [1992] 1 S.C.R. 771

Cases Distinguished:

• R. v. C.-P. (J.), [2018] O.J. No. 6918, 2018 ONCA 986 (C.A.)
• R. v. Steele, [2012] O.J. No. 2545, 2012 ONCA 383

Other Cases Referred To:

• R. v. Barna, [2018] O.J. No. 6584, 2018 ONCA 1034
• R. v. Chouhan (2020), 149 O.R. (3d) 365, 2020 ONCA 40; leave to appeal to S.C.C. granted, [2020] S.C.C.A. No. 19
• R. v. Handy (2002), 61 O.R. (3d) 414, [2002] 2 S.C.R. 908, 2002 SCC 56
• R. v. Noureddine (2015), 128 O.R. (3d) 23, 2015 ONCA 770
• R. v. O'Brien, [2011] 2 S.C.R. 485, 2011 SCC 29
• R. v. Picard (2017), 137 O.R. (3d) 401, 2017 ONCA 692; leave to appeal to S.C.C. refused, [2018] S.C.C.A. No. 135
• R. v. Seegmiller
• R. v. Stubbs, [2013] O.J. No. 3657, 2013 ONCA 514

Statutes Referred To

• Canadian Charter of Rights and Freedoms, s. 11(b)
• Criminal Code, R.S.C. 1985, c. C-46, ss. 631(2.1), (2.2), 642.1(1) [as am.], (2), 643(1) [as am.], 652.1, (2), 686(1)(b)(iv)

APPEALS by the accused from conviction.

Counsel: Ingrid Grant, for appellants. Ian Bell, for respondent.

The judgment of the court was delivered by

HARVISON YOUNG J.A. : —

A. Overview

[1] The appellants Conroy and Kharla Rose are married. They were convicted before a judge and jury of several charges in relation to alleged drug trafficking. Specifically, Conroy was convicted of three counts of possessing proceeds of crime and one count of money laundering, while Kharla was convicted of one count of possessing proceeds of crime and one count of money laundering. They were self-represented at trial. Both Conroy and Kharla appeal their convictions and sentences.

[2] Conroy and Kharla raise two principal grounds of appeal from conviction: (1) the trial judge erred in failing to follow the provisions of the Criminal Code, R.S.C., 1985, c. C-46 that govern the procedure for dismissing an additional juror; and (2) the trial judge erred in admitting evidence of Conroy's prior convictions, particularly in the form of judicial reasons.

[3] In addition, Kharla appeals from the dismissal of her claim that she did not receive a trial within a reasonable time, as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms. Accordingly, Kharla seeks a stay of the proceedings against her.

[4] For the reasons that follow, I would allow the appeals from conviction and order a new trial. As a result, I need not address the sentence appeals. I would also dismiss Kharla's appeal on the s. 11(b) ground.

[5] I will only review the facts that are necessary to dispose of this appeal.

B. The Factual Background

[6] In July 2010, the police executed search warrants at an apartment on Oxford Street West and a house on Staffordshire Road in London, Ontario. Conroy had signed the lease and paid rent for the apartment. Kharla owned the house.

[7] At the apartment, the police seized about $20,000 in cash. At the house, the police seized 11 safety deposit box keys, a key that was later found to unlock the apartment, and a BMW. Shortly after executing these warrants, the police located seven safety deposit boxes in Kharla's name containing over $400,000 in cash.

[8] The police arrested and charged Conroy and Kharla with possession of proceeds of crime and money laundering. Specifically, Conroy was charged with -- possession of proceeds of crime, particularized as a Honda; -- possession of proceeds of crime, particularized as $20,000 found in his apartment; and -- possession of proceeds of crime, particularized as a BMW.

[9] Kharla was charged with possession of proceeds of crime, particularized as $465,710 found in the seven safety deposit boxes in her name.

[10] Conroy and Kharla were also charged jointly with one count of money laundering. The Crown alleged they used proceeds of crime to pay down the mortgage on their marital home.

[11] The Crown brought an application in July 2015 to adduce evidence relating to Conroy's former charges and convictions. As a result of this application, significant evidence of Conroy's prior convictions was admitted in the form of reasons for decision. The details of this will be discussed further below.

[12] In August and October 2015, Kharla brought a pre-trial s. 11(b) application for a stay of the charges against her. The application was dismissed.

[13] The appellants represented themselves at the trial. The jury convicted Conroy and Kharla on all counts.

[14] I will now turn to the three grounds of appeal: -- the dismissal of the additional juror; -- the evidence relating to Conroy's prior convictions; and -- the dismissal of Kharla's s. 11(b) application.

C. The Dismissal of the Additional Juror

[15] The trial began in March 2017. After 12 jurors were selected, two extra jurors were sworn in as "alternate number one" and "alternate number two". Although the trial judge referred to these jurors as alternates, they remained present when the evidence began.

[16] Shortly after the trial began, one of the first 12 jurors was excused. The trial judge ordered that alternate number one would replace the lost juror. She also ordered that alternate number two continue hearing evidence.

[17] At the end of the evidence and prior to closing addresses to the jury, the trial judge stated (without the jury present):

So I will discharge the jury [for the weekend] and I am going to be discharging the alternate -- actually we don't call her "alternate" we call her "additional" in accordance with the Criminal Code.

[18] When the jury was present, the trial judge then dismissed alternate number two, addressing her as "additional juror number 13". This juror did not participate in deliberations. For clarity, I will refer to this dismissed juror as "juror 13".

[19] "Alternate" jurors and "additional" jurors address different concerns and are governed by different procedures of the Criminal Code. Section 631(2.1) provides that a judge may select one or two "alternate" jurors. Section 631(2.2) provides that a judge may have one or two "additional" jurors sworn.

[20] Alternate jurors protect against the risk that some jurors may be excused, abscond, or be otherwise unavailable between the time that the jury is selected and the beginning of the evidence. They are not intended to hear evidence. Instead, pursuant to s. 642.1(1), they are present at the beginning of evidence to replace any absent juror. This is to prevent the need to start the jury selection process anew if numbers have fallen before the evidence begins. Section 642.1(2) states that an "alternate juror who is not required . . . shall be excused" (emphasis added). Alternate jurors are therefore excused before the evidence begins if there is a full jury present without them at that point.

[21] Additional jurors protect against the loss of jurors during the course of the evidence, something which may be a particular concern during long trials. Unlike alternate jurors, additional jurors are intended to remain throughout the evidence. If the additional jurors remain at the time deliberations are to begin, s. 652.1 governs the procedure for reducing the jury to 12 members:

652.1(1) After the charge to the jury, the jury shall retire to try the issues of the indictment.

(2) However, if there are more than 12 jurors remaining, the judge shall identify the 12 jurors who are to retire to consider the verdict by having the number of each juror written on a card that is of equal size, by causing the cards to be placed together in a box that is to be thoroughly shaken together and by drawing one card if 13 jurors remain or two cards if 14 jurors remain. The judge shall then discharge any juror whose number is drawn.

[22] In short"alternate" jurors, by definition, remain present only until the evidence begins. At that point, they are excused unless one or both are required. "Additional" jurors, on the other hand, remain until the evidence is complete. Before deliberations, the number of the jury members must be reduced to 12. This reduction is done randomly, as required by s. 652.1. There is no such requirement applicable to alternate jurors.

[23] It is common ground that although the trial judge used the term "alternate" to describe the extra jurors early in the trial, she treated them as "additional" jurors, as per s. 631(2.2) of the Criminal Code, by allowing them to remain present throughout the evidence. The problem is that, before deliberations began, she dismissed juror 13, one of the two additional jurors chosen, and the last to have been chosen, rather than randomly selecting a juror to be dismissed, as s. 652.1(2) of the Criminal Code requires.

The parties' submissions

[24] The appellants submit that the trial judge failed to follow mandatory Criminal Code procedures, which resulted in an improperly constituted jury. Relying primarily on this court's reasons in R. v. Noureddine (2015), 128 O.R. (3d) 23, 2015 ONCA 770, at paras. 49-53, the appellants suggest the trial judge's error deprived them of a statutory right in the jury selection procedure. This error is analogous to errors relating to peremptory challenges, challenges for cause, or "stand-asides". As such, the curative proviso in s. 686(1)(b)(iv) of the Criminal Code cannot apply.

[25] The appellants further suggest the trial judge's errors caused prejudice. A random selection procedure to reduce the jury to 12 members is necessary to prevent a judge from influencing the jury composition to an accused's disadvantage. The appellants argue the trial judge's error creates an appearance of unfairness, which warrants a new trial.

[26] The Crown concedes that the trial judge should have randomly dismissed a juror, rather than dismissing juror 13. However, it denies that the jury was improperly constituted, because the trial judge's error arose after the jury was constituted. The Crown relies on s. 643(1) of the Criminal Code, which reads:

643(1) The 12, 13 or 14 jurors who are sworn in accordance with this Part and present at the commencement of the presentation of the evidence on the merits shall be the jury to hear the evidence on the merits.

(Emphasis added)

Based on this wording, the Crown suggests the jury was properly constituted at the commencement of the presentation of evidence in this case. Any error after this point does not go to the question of whether a jury is properly constituted.

[27] In addition, the Crown submits that when this court has ordered a new trial based on a trial judge's error in discharging (or failing to discharge) a juror once the trial has commenced, it has been on the basis that the error created at least the appearance of unfairness to the accused. The Crown says that here, there is no basis to support even the appearance that the trial judge "hand-picked" the final jury composition, as the appellants suggest. As such, the error was a mere irregularity, which can be saved by the curative proviso under s. 686(1)(b)(iv).

Law and analysis

[28] I agree with the appellants' submissions on this issue. First, the error in failing to discharge a juror randomly under s. 652.1(2) is analogous to errors regarding a challenge for cause, Crown stand-asides, static or rotating triers, or the summoning of talesman. For instance, in Noureddine, at para. 55, this court wrote that "the process used to determine the appellants' challenges for cause directly contravened the controlling Criminal Code provisions", and thus the court below was improperly constituted. Similarly, in this case, the process used to dismiss juror 13 directly contravened s. 652.1(2) of the Criminal Code.

[29] While the jury may have been properly constituted at the outset to hear the evidence, it was not properly constituted according to s. 652.1(2) when it began to deliberate on that evidence. I see no principled distinction arising from the temporal difference between an error under s. 652.1(2) and other previously listed errors going to the constitution of the jury that could justify treating this error differently. The idea that following Criminal Code procedures at the beginning of the trial effectively operates to insulate the court from the requirements of those procedures at a later stage in the trial does not make sense.

[30] Second, even if the curative proviso could be argued, it cannot be said that there was no prejudice caused to the appellants. The curative proviso is only successful in cases where the Crown can "establish on a balance of probabilities that the legal error is harmless" in the sense that no prejudice resulted or that a trier of fact would inevitably convict: R. v. O'Brien, [2011] 2 S.C.R. 485, 2011 SCC 29, at para. 34.

[31] Here, the Crown has not met its burden to justify the curative proviso's application. As this court outlined in R. v. Chouhan (2020), 149 O.R. (3d) 365, 2020 ONCA 40, leave to appeal [to S.C.C.] granted, [2020] S.C.C.A. No. 19, there are various in-court mechanisms to protect against actual and apparent jury partiality, such as challenges for cause: at paras. 66-72. Similarly, the purpose of s. 652.1(2) is to ensure that the trial judge discharges additional jurors impartially. The random dismissal procedure helps prevent a trial judge from "hand-picking" the final composition of the jury based on their observations.

[32] While there is no suggestion of actual impartiality in this case, the point is that the failure to follow the procedure in s. 652.1(2) causes prejudice by tainting the appearance of jury impartiality. Proof of actual impartiality is not necessary to demonstrate prejudice for the purposes of the curative proviso: Noureddine, at para. 63. Treating the trial judge's error as inconsequential would risk bringing the administration of justice into disrepute. The curative proviso cannot apply.

[33] I would therefore order a new trial on this ground.

D. The Evidence Relating to Conroy's Prior Convictions

[34] In July 2015, the Crown brought a pre-trial application to lead evidence of Conroy's three prior drug trafficking-related charges, dated 2007, 2008 and 2010. The trial judge allowed the application only with respect to the 2008 charges, for which Conroy was convicted in 2011 (the "2008 convictions"). The 2008 convictions were for the possession of cocaine for the purpose of trafficking and possession of proceeds of crime.

[35] At the time of the application, the parties indicated that they would create an agreed statement of facts to admit the evidence of the prior convictions. This did not happen. Instead, at trial, the Crown called several officers to testify about the 2008 convictions. The following documents were also admitted as evidence for the jury's consideration: -- Tausendfreund J.'s reasons for judgment on the 2008 convictions and sentence; -- Leitch J.'s reasons for judgment on a related forfeiture hearing; and -- an order from the Court of Appeal dismissing Conroy's appeal from the 2008 convictions.

The parties' submissions

[36] The appellants concede that admitting the fact of the convictions for possession of cocaine for the purpose of drug trafficking was sufficiently probative regarding the origin of the money in the present case. However, they argue that (1) admitting the fact of the proceeds convictions; and (2) admitting the 2008 convictions in the form of the reasons for decision was highly prejudicial and warrants a new trial.

[37] First, they say the proceeds convictions should not have been admitted, because they were not relevant to the origin of the money, which was the only live issue at trial. Further, the proceeds convictions permitted impermissible propensity reasoning. The risk of propensity reasoning was particularly high, given that the proceeds convictions arose at least in part from the same sources of income in the same time period as the case at bar.

[38] Second, the appellants argue that the reasons for judgment relating to the 2008 convictions should not have been admitted and filed as exhibits, because they contained more than the fact of the 2008 convictions. As the reasons in their entirety were admitted, they were inevitably imbued with the inherent authority of another judge's decision that could readily overwhelm a jury. Moreover, they were comprised in essence of a blend of hearsay and expert opinion, which both call for careful jury instructions as to the proper use of such evidence. No such jury instructions were given.

[39] In response to the first issue, the Crown submits that the proceeds convictions were highly probative and minimally prejudicial. Specifically, the proceeds convictions were important additional evidence of Conroy's commercial drug trafficking, which was relevant to the origin of the assets in the case at bar.

[40] In response to the second issue, the Crown concedes that the trial judge failed to balance the probative value against the prejudicial effect of the manner in which the prior convictions were entered into evidence. It maintains that negligible prejudice resulted, because the Crown called testimonial evidence from four witnesses that amply supported the contents of the exhibited reasons. In addition, Conroy had the opportunity to cross-examine these witnesses. There was little to suggest that a challenge to the 2008 convictions or the evidence underlying those convictions would have succeeded.

[41] The Crown concedes that the forfeiture ruling should not have been admitted into evidence. However, it argues that there is no reasonable possibility that the verdict could have been different.

Law and analysis

[42] Evidence of prior discreditable conduct is presumptively inadmissible: R. v. Stubbs, [2013] O.J. No. 3657, 2013 ONCA 514, at paras. 54-56. It is only admissible where its probative value to the charges on the indictment outweigh their prejudicial effects. On appeal, a trial judge's decision to admit this kind of evidence is generally entitled to deference unless it is unreasonable, tainted by legal error, or cumbered by a misapprehension of the material evidence: Stubbs, at para. 66.

[43] The trial judge found the prior convictions for the 2008 offences, including the proceeds convictions, to be admissible. This finding is entitled to deference: Stubbs, at para. 58. However, the 2008 convictions were admitted in a highly problematic manner. The trial judge did not balance the probative value and the prejudicial effect of the findings in the reasons that were made exhibits at trial. To admit these three sets of reasons without considering this balance is an error and this decision is thus not entitled to deference.

[44] Had the trial judge conducted the balancing exercise, it is difficult to see how she could have admitted the reasons. They contained findings of fact and opinions that were more prejudicial than probative of the source of money in this case. For instance, Tausendfreund J.'s reasons for conviction state that "the activity viewed and observed by the police that evening were consistent with the accused trafficking in an illicit drug". However, in the present case, Conroy was not charged or convicted of trafficking; the admitted convictions were for possession of cocaine for the purpose of trafficking, and possession of proceeds of crime.

[45] Moreover, Tausendfreund J.'s sentencing reasons state that there "is no doubt in my mind that Mr. Rose was involved in a well-organized and not on a small scale illicit drug marketing scheme". As the appellants highlight, Tausendfruend J.'s findings on this point arguably addressed aggravating factors in sentencing, rather than inherent elements of the conviction.

[46] In any case, Tausendfreund J.'s sentencing reasons should not have been admitted at all because they were not probative of the source of the proceeds in this case. Similarly, and as the Crown concedes, there was no basis for admitting Leitch J.'s forfeiture order and reasons.

[47] The Crown argues that there is no reasonable possibility that the verdict could have been different. I disagree. The jury was presented with three sets of reasons that contained judicial findings that went well beyond the fact of Conroy's prior convictions and, as such, significantly increased the possibility of impermissible propensity reasoning. As authoritative statements from a judge, there was a particularly high risk that these findings would overwhelm the jury's own fact finding.

[48] This error was further compounded by inadequate jury instructions regarding the prior convictions and exhibited reasons. When instructing the jury on the element of whether the BMW, Honda Civic, and $20,000 were obtained by crime, the trial judge simply stated:

Now, evidence was adduced from some witnesses with respect to the 2008 charges. . . You have as part of Exhibits 23, 24 and 25 the decisions of Justice Tausendfreund, issued on September 13th, 2011, who convicted Conroy of possession of proceeds of crime in relation to the money he had in his seven bank accounts, and found him guilty of possession for the purposes of trafficking in cocaine.

[49] The trial judge did not give guidance on how these reasons could be used. Later -- when instructing the jury on the element of whether Conroy knew the property had been obtained by or derived from crime -- the trial judge told the jury to analyze the prior convictions as similar fact evidence. This is despite the fact that, as the Crown concedes, the evidence of Conroy's prior convictions was not similar fact evidence as understood in R. v. Handy (2002), 61 O.R. (3d) 414, [2002] 2 S.C.R. 908, 2002 SCC 56.

[50] In these circumstances, admitting the three sets of reasons in the absence of adequate correcting instructions was a fatal error, regardless of whether the fact of the 2008 proceeds convictions should have been admitted. I would order a new trial on this ground as well.

E. The Dismissal of Kharla's Section 11(b) Application

[51] Gorman J., the application judge, began by noting the "inordinate" delay of five years, two months and 11 days between Kharla's arrest on August 3, 2010, and her anticipated trial date on October 14, 2015. As she issued her ruling before R. v. Jordan, [2016] 1 S.C.R. 631, 2016 SCC 27, the application judge applied the test for assessing unreasonable delay in R. v. Morin, [1992] 1 S.C.R. 771.

[52] She found that this was an inherently complex case involving separate investigative entities, which excused longer periods of delay. She noted that Conroy had changed counsel three times and Kharla had changed counsel twice, which contributed to the delay. Overall, she found: -- the total neutral delay was 27 months and 22 days; -- the total Crown delay was three months and six days; -- the total defence delay was six months and 14 days; and -- the institutional delay was 19 months and 14 days.

[53] Having done so, the application judge stated that,

While the overall length of delay is concerning, when examination is made of the relevant periods it cannot be said that the Crown did anything but make efforts to move the case along. This is a complex case with several players. There were clearly attempts at resolution . . . which necessitated adjournments. Further, the shifting of counsel did nothing to improve the pace of the litigation.

[54] Through an affidavit, Kharla stated she had lost her job and been unable to find alternative work. However, she had not tried to find employment since 2013. The application judge noted that several of the most stringent bail conditions (such as non-association with Conroy, along with the reporting clause) had been deleted. The application judge concluded that Kharla had not suffered prejudice.

[55] The application judge also emphasized that the charges were serious. She cited R. v. Seegmiller, [2004] O.J. No. 5004, 191 C.C.C. (3d) 347 (C.A.), for the proposition that the absence of meaningful prejudice to the accused can lengthen the period of delay that is constitutionally tolerable, particularly where there is a heightened social interest in a trial on the merits. She then concluded:

A judicial stay of proceedings must only be granted in the clearest of cases. In my view, this is not such a case. In all of the circumstances I am not persuaded that [sic] delay was unreasonable. Accordingly the Application is dismissed.

The parties' submissions

[56] Kharla submits the application judge erred in three main ways: (1) she denied a stay of proceedings based on the "clearest of cases" test, which does not apply to s. 11(b) applications; (2) she failed to scrutinize the pace of disclosure and the lack of explanation for delays in disclosure; and (3) she failed to consider inferred prejudice. Kharla asserts delay based on the anticipated trial date at the time of the s. 11(b) application, October 14, 2015. She does not rely on any periods after this date for the purpose of her s. 11(b) claim of unreasonable delay.

[57] The Crown argues that where the application judge made errors in characterizing specific time periods, her errors favoured Kharla. As for prejudice, the Crown emphasizes that Kharla does not challenge the underlying facts that led the application judge to reject her argument that she had suffered prejudice. The Crown submits that when the time periods are characterized properly, the delay in this case is reasonable. The case was inherently complex and there were significant periods of defence-caused delay.

Law and analysis

[58] The application judge incorrectly cited the "clearest of cases" test when refusing a stay of proceedings. While a stay of proceedings is to be treated as a remedy of last resort for other Charter violations, a stay is the "minimal remedy" for a s. 11(b) violation: R. v. Steele, [2012] O.J. No. 2545, 2012 ONCA 383, at paras. 30-31.

[59] Having said this, the application judge correctly found that the delay in this case was reasonable.

[60] To begin, I note that Kharla's s. 11(b) application was decided a little under one year before Jordan was released. The Jordan framework applies to cases in the system prior to Jordan's release.

[61] Under Jordan, the presumptive ceiling for a case tried in the superior courts is 30 months from the date of arrest. Once the presumptive ceiling is exceeded, the Crown bears the burden of rebutting the presumption of unreasonableness, based on exceptional circumstances. If the Crown cannot do so, a stay will follow. An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the presumptive ceiling.

[62] For cases that were in the system prior to Jordan's release, transitional exceptional circumstances may justify a delay that exceeds a presumptive ceiling. In R. v. C.-P. (J.), [2018] O.J. No. 6918, 2018 ONCA 986 (C.A.) ["J.C.-P."], at para. 20, this court explained whether and how transitional exceptional circumstances may apply:

. . . [T]he Crown must satisfy the court that the time taken in the case is justified based on the parties' reasonable reliance on the law as it previously existed under R. v. Morin, [1992] 1 S.C.R. 771. This requires the court to undertake a contextual assessment of the delay, sensitive to the manner in which the previous framework was applied, and to the fact that the parties' behaviour cannot be judged strictly, against a standard of which the parties had no notice. Consideration of the seriousness of the offences, prejudice to the accused, and the parties' general level of diligence may inform whether the parties reasonably relied on the previous state of the law.

(Citations omitted)

[63] The first step in the Jordan analysis is to determine the total delay between the charges and the anticipated end of the trial. The total delay here was about 63 months and one week, from August 3, 2010 to November 11, 2015. The anticipated trial end date was based on the fact that, at the time of s. 11(b) application, the trial was to begin on October 14, 2015 and last for four weeks.

[64] The next step is to determine whether the defence waived or caused any of the delay. The application judge found that the six and one-half-month period from November 26, 2012 to June 10, 2013 was for a defence adjournment request and constituted defence delay. Kharla does not dispute this characterization. I agree this six and one-half-month period constitutes defence delay.

[65] The Crown suggests the following periods are also defence delay: -- June 17 to September 30, 2011: defence adjournment requests pending results of Conroy's trial on the 2008 offences; -- September 30, 2011 to December 20, 2011: adjournments for possible resolution, with an explicit s. 11(b) waiver from November 29 to December 20; and -- December 20, 2011 to January 13, 2012: defence attempts to obtain instructions for resolution.

[66] I agree that these listed periods, which equal roughly six months, should be treated as defence delay. Collectively, then, the defence delay is 12.5 months and must be deducted from the total delay of 63 months and one week. The resulting net delay is 50.75 months, which exceeds the 30-month presumptive ceiling in Jordan.

[67] As such, the Crown must show that the time the case has taken is justified by exceptional circumstances. It relies on the transitional exceptional circumstance. For this reason, the Morin analysis must be applied. Under Morin, the following factors are relevant for determining whether delay is unreasonable:

1. the length of the delay;
2. waiver of time periods;
3. the reasons for delay, including a. the accused's actions; b. the Crown's actions; c. limits on institutional resources; and d. other reasons for delay; and
4. prejudice to the accused.

[68] Kharla advances only one recharacterization of delay periods. She suggests that "a substantial portion" of August 3, 2010 to November 29, 2011, should be seen as Crown instead of neutral delay, due to delays in providing disclosure.

[69] I do not agree. I have already found that the period from June 17, 2011 to December 20, 2011 was defence delay. During the rest of the impugned period, the parties focused on resolution rather than setting dates.

[70] The Crown concedes that it may have taken "excessive" time to unseal the relevant warrants, but maintains this did not substantially affect the delay in this case. This is supported by the record. For instance, the absence of the warrants did not appear to prevent a focus hearing from occurring on April 19, 2011 and a first judicial pre-trial on May 3, 2011.

[71] I agree with the Crown that the five-month adjournment from June 17, 2013 until November 19, 2013 of the preliminary hearing should be considered as neutral delay. Counsel for Kharla made a clear concession on this point at the hearing, as evidenced in the transcripts.

[72] I also find that the institutional delay in awaiting the anticipated trial date is about six months, from April 7, 2015 to October 14, 2015. Institutional delay does not necessarily begin from the set date. Instead, institutional delay only begins to run when the parties are ready for trial and the system cannot accommodate them: Morin, at pp. 794-95 S.C.R.; see, also, R. v. Picard (2017), 137 O.R. (3d) 401, 2017 ONCA 692, at paras. 92-102, leave to appeal to S.C.C. refused, [2018] S.C.C.A. No. 135.

[73] In this case, on February 18, 2015 and April 7, 2015, there was a judicial pre-trial to discuss pre-trial motions and clarify related issues. This demonstrates the parties were not ready to begin trial until April 7, 2015, at the earliest.

[74] At most, the total institutional delay is 16 months and 12 days, as follows: -- March 26, 2012 to November 26, 2012: awaiting preliminary hearing; -- June 6, 2014 to August 11, 2014: awaiting decision on committal; and -- April 7, 2015 to October 14, 2015: awaiting trial.

[75] This falls under the 18-month Morin guidelines for institutional delay. The Crown delay is two months and 13 days, from January 13, 2012 to March 26, 2012, a period where the Crown was awaiting a witness list for a focus hearing. The defence delay is 14 months, as indicated earlier. The remaining delay is neutral.

[76] Regarding prejudice under the Morin framework, the application judge correctly concluded that Kharla did not suffer any specific prejudice. While she did not explicitly consider inferred prejudice, I find that any inferred prejudice would not outweigh other relevant considerations. Kharla did not seriously raise Crown missteps that render the delay otherwise unreasonable. Additionally, the parties agree this was a complex prosecution on serious charges.

[77] In these circumstances, which occurred entirely pre-Jordan, the delay was reasonable under the Morin framework. The release of Jordan "should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one": Jordan, at para. 102. The situation here is akin to that in R. v. Barna, [2018] O.J. No. 6584, 2018 ONCA 1034, at para. 7, where this court wrote:

The relative complexity of the case, the fact the period of institutional delay . . . fell within (albeit at the upper limits) of the Morin guidelines, and the seriousness of the charges, weighed against the prejudice to the accused, support the application of the "transitional exceptional circumstance" in this case.

[78] This is not a case like J.C.-P or Steele, where the institutional and Crown delay make up a majority of the total delay, and the institutional delay exceeded the Morin guidelines: J.C.-P, at paras. 46-52; Steele, at paras. 34-36. The application judge did not err in dismissing Kharla's s. 11(b) application in the circumstances.

F. Disposition

[79] The trial judge erred in failing to dismiss an additional juror according to the procedure under s. 652.1(2) of the Criminal Code. The trial judge also erred in allowing the Crown to file reasons for judgment relating to Conroy's 2008 convictions. The application judge did not err in dismissing Kharla's s. 11(b) application. For these reasons, I would allow the appeal, set aside the convictions and order a new trial.

Appeals allowed.