Her Majesty the Queen v. Villanti et al.

[Indexed as: R. v. Villanti]

Ontario Reports

Court of Appeal for Ontario

E.E. Gillese, P.D. Lauwers and M.L. Benotto JJ.A.

November 30, 2020

153 O.R. (3d) 481 | 2020 ONCA 755

Case Summary

Charter of Rights and Freedoms — Trial within reasonable time — Complexity of case — Four accused having initial application for delay dismissed due to complexity of case despite presumptive ceiling being exceeded — Further delay caused by trial judge being reassigned due to sudden illness of two other judges and understaffing of judicial offices resulting in 11-month delay in re-scheduling trial — Sixty months after charges laid, accused's second application for a stay for unreasonable delay allowed — Crown's appeal dismissed — Application judge properly considered complexity of the case, properly accounted for the illnesses as a discrete event and did not err in applying Jordan principles rigourously — Delay exceeded Morin guidelines by more than a year — Charter of Rights and Freedoms, ss. 11(b).

Charter of Rights and Freedoms — Remedies — Stay of proceedings — Four accused having initial application for delay dismissed due to complexity of case despite presumptive ceiling being exceeded — Further delay caused by trial judge being reassigned due to sudden illness of two other judges — 60 months after their arrest accused's second application for a stay for unreasonable delay allowed — Crown's appeal dismissed — Application judge properly considered complexity of the case, properly accounted for the illnesses as a discrete event and did not err in rigourously applying Jordan principles to case in which significant delays occurring well after Jordan decided — Even if had applied Morin principles, combined institutional and Crown delay would have been a year above the Morin guidelines — Charter of Rights and Freedoms, ss. 11(b).

Four accused were arrested in March 2014 and charged with fraud over $5,000 and conspiracy to commit an indictable offence. The charges alleged a $13 million fraud stemming from a tax avoidance scheme operated over several years. A 12-week jury trial was scheduled to begin in September 2017. One month before the scheduled date, the accused applied to stay the charges for unreasonable delay under s. 11(b) of the Charter. A new regime for delay matters had been established by the Supreme Court of Canada in July 2016. The application judge found that although the new presumptive ceiling of 30 months had been exceeded (by 14 months), the complexity of the case and the exception for transitional circumstances justified the time taken and the application was dismissed. Three of the accused obtained adjournments to retain counsel, and the trial was rescheduled for February 2018. On the day that the trial was set to begin, the judge assigned to the trial had been reassigned as a consequence of two other judges having taken ill. Although the parties were ready to proceed, because of limited judicial resources caused by infilled vacancies, the earliest date the court could provide was 11 months later. The accused again applied for a stay of proceedings, 60 months after they were arrested. The second application judge accepted that the simultaneous illness of two judges was a discrete event that could amount to an exceptional circumstance, and stated that she would only be prepared to deduct two-three months as a result, not the entire 11-month delay, as the Crown had argued. The judge granted a stay for unreasonable delay. The Crown appealed.

Held, the appeal should be dismissed.

The application judge did not err in failing to account for the delay attributable to the complexity of the case. The judge explicitly agreed with the first application judge that the case was complex. She rejected the Crown's argument that there was additional complexity related to the 11-month delay flowing from two new initiatives by the defence. She noted that the parties were ready to proceed as of February 2018 and opined that the 12 weeks scheduled for the trial was sufficient. The judge's assessment of the requirements of the case was owed deference.

The application judge properly recognized that the delay attributable to the unexpected illness of two judges was a discrete event and stated that she would have been prepared to deduct two-three months from the total delay in recognition of this exceptional event. She identified two causes for the 11-month delay that she did not fully differentiate: the lack of judicial resources in Toronto and the fact that the resources issue compelled the court to give priority to cases considered to be more worthy of trial. The range of reasonable time she set for institutional response to the discrete event of two judicial illnesses was up to three months, but even if the 11-month delay were abridged by three months the net delay still significantly exceeded the presumptive timeline of 30 months. The Crown argued that there was an absence of evidence to explain the judge's findings on the lack of judicial resources, that substantial efforts were made to take reasonable steps to avoid and address the problem that arose, that the judge failed to deduct a single day on account of exceptional circumstances, that the provincial Crown was not answerable to the federal government's delay in filling judicial vacancies and that the appointment of additional judges to the Toronto complement took time to implement. All of those arguments were rejected.

The Crown had submitted before the application judge that the transitional exceptional circumstance did not apply, but argued on appeal that it justified all or some of the 11-month delay after February 2018. The application judge could not be faulted for not dealing with an issue the Crown conceded. Further, the application judge's logic was correct. The discrete event of the two illnesses could not reasonably be rooted in any slow rhythm the parties might have developed under the former delay regime. In any event, an analysis under the old regime weighed in favour of a stay given that the combined Crown and institutional delay was a year more than was permitted under the Morin guidelines, not a further justification of the delay under the exception for transitional circumstances.

R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27, 398 D.L.R. (4th) 381, J.E. 2016-1212, 388 B.C.A.C. 111, 335 C.C.C. (3d) 403, 29 C.R. (7th) 235, 358 C.R.R. (2d) 97, 130 W.C.B. (2d) 596, apld

R. v. Cody, [2017] 1 S.C.R. 659, [2017] S.C.J. No. 31, 2017 SCC 31, 411 D.L.R. (4th) 619, 349 C.C.C. (3d) 488, 37 C.R. (7th) 266, 381 C.R.R. (2d) 360, 138 W.C.B. (2d) 118, EYB 2017-281041, 2017 CarswellNfld 252, 2017 CarswellNfld 251, 2017EXP-1801; R. v. Morin, [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, 134 N.R. 321, J.E. 92-517, 53 O.A.C. 241, 71 C.C.C. (3d) 1, 12 C.R. (4th) 1, 8 C.R.R. (2d) 193, 1992 CanLII 89, 1992 CarswellOnt 984, 1992 CarswellOnt 75, 15 W.C.B. (2d) 276, EYB 1992-67508, consd

Other cases referred to

Guindon v. Canada, [2015] 3 S.C.R. 3, [2015] S.C.J. No. 41, 2015 SCC 41, 387 D.L.R. (4th) 228, 473 N.R. 120, J.E. 2015-1269, 327 C.C.C. (3d) 308, 21 C.R. (7th) 23, 342 C.R.R. (2d) 254, [2015] 6 C.T.C. 1, 256 A.C.W.S. (3d) 78, EYB 2015-254987, 2015 CarswellNat 3231, 2015 CarswellNat 3232, 2015EXP-2269; R. v. Coulter (2016), 133 O.R. (3d) 433, [2016] O.J. No. 5005, 2016 ONCA 704, 340 C.C.C. (3d) 429, 32 C.R. (7th) 316, 2016 CarswellOnt 14832, 133 W.C.B. (2d) 125; R. v. Godin, [2009] 2 S.C.R. 3, [2009] S.C.J. No. 26, 2009 SCC 26, 309 D.L.R. (4th) 149, 389 N.R. 1, J.E. 2009-1076, 252 O.A.C. 377, 245 C.C.C. (3d) 271, 67 C.R. (6th) 95, 192 C.R.R. (2d) 184, 2009 CarswellOnt 3100, 2009 CarswellOnt 3101, EYB 2009-159757; R. v. Gopie (2017), 140 O.R. (3d) 171, [2017] O.J. No. 4963, 2017 ONCA 728, 393 C.R.R. (2d) 317, 2017 CarswellOnt 14931, 142 W.C.B. (2d) 154, 356 C.C.C. (3d) 36; R. v. J.C.P., [2018] O.J. No. 691, 2018 ONCA 986; R. v. Jurkus, [2018] O.J. No. 2899, 2018 ONCA 489, 363 C.C.C. (3d) 246, 2018 CarswellOnt 8640, 149 W.C.B. (2d) 32; R. v. Manasseri (2016), 132 O.R. (3d) 401, [2016] O.J. No. 5004, 2016 ONCA 703, 344 C.C.C. (3d) 281, 2016 CarswellOnt 14830, 133 W.C.B. (2d) 203 [Leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 513]; R. v. Rice, [2018] J.Q. no 783, 2018 QCCA 198, 44 C.R. (7th) 83, 2018EXP-452, EYB 2018-290294, 2018 CarswellQue 676, 145 W.C.B. (2d) 29, 44 C.R. (7th) 83; R. v. Thanabalasingham, [2020] S.C.J. No. 18, 2020 SCC 18, 447 D.L.R. (4th) 310, 390 C.C.C. (3d) 400, EYB 2020-355983, 2020 CarswellQue 7168, 2020 CarswellQue 7167, 2020EXP-1697

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 11(b), 24(1)

APPEAL by Crown from stay of proceedings for unreasonable delay.

Michael Bernstein, for appellant.

Ravendra Chaudhary, acting in person.

Paul Riley, for respondents Vincent Villanti and Shane Smith.

Thomas Mathews, for respondent David Prentice.

Geoff Haskell, for respondent Andrew Lloyd.

The judgment of the court was delivered by

P.D. LAUWERS J.A.: —

[1] The respondents, Vincent Villanti, Ravendra Chaudhary, Shane Smith, David Prentice and Andrew Lloyd, were arrested on or around March 26, 2014 and charged with fraud over a value of $5,000 and conspiracy to commit an indictable offence. The charges allege a $13 million fraud stemming from a tax avoidance scheme the respondents operated from 2009 to 2013.

[2] The application judge stayed the charges against the respondents because of unreasonable delay in their trial under ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms. The total time between the arrests of the appellants on or about March 26, 2014 and the projected completion date of the re-scheduled 12-week jury trial of April 5, 2019 would have been about 60.5 months.

[3] The application judge calculated the net delay under the methodology prescribed by R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27. For the appellants Villanti, Lloyd and Chaudhary, she found that the net delay would have exceeded the presumptive ceiling of 30 months by 16 months, and for the appellants Smith and Prentice, by 21 months.[^1]

[4] The Crown appeals. For the reasons set out below, I would dismiss the appeal.

A. Overview

[5] The 12-week jury trial was originally scheduled to begin on September 25, 2017. One month before the scheduled trial date, the respondents brought an application to stay the charges for unreasonable delay under s. 11(b) of the Charter. O'Marra J. dismissed the application for the reasons reported at [2017] O.J. No. 6917, 2017 ONSC 7130 (S.C.J.). He found the time between the respondents' arrest and the anticipated completion of the trial to be about 44 months, which exceeded by 14 months the Jordan presumptive ceiling of 30 months. However, O'Marra J. found that both the complexity of the case and the exception for transitional circumstances, as explained in Jordan, justified the time the case had taken to that point. He then granted adjournments to Villanti, Lloyd and Chaudhary, who wanted to retain counsel. The trial was rescheduled for February 26, 2018, five months later.

[6] On the day the trial was set to begin, McMahon J., who leads the Superior Court's criminal long trial team in Toronto, advised the parties that two judges had just taken ill. The judge assigned to their trial had been reassigned to the trial of an accused who was in custody and no other judge was available to try the case, which McMahon J. then rescheduled to January 11, 2019, roughly 11 months later.

[7] The respondents applied again for a stay of proceedings under s. 11(b) of the Charter due to unreasonable delay, which the application judge granted.

[8] The application judge accepted that the simultaneous illness of two judges was a discrete event that could amount to an exceptional circumstance as outlined in Jordan. She also agreed with O'Marra J. that the case was complex: at para. 34. Despite these findings, she did not accept that the 11-month period should be deducted to account for exceptional circumstances: para. 36.

B. The Issues

[9] The Crown submits that the 11-month delay "stems from exceptional circumstances, as considered in Jordan" and that the application judge made three errors in failing to treat the period of the adjournment as an exceptional circumstance for Jordan purposes: first, regarding the delay attributable to the complexity of the case; second, regarding the unexpected illness of two judges as a discrete event; and third, regarding the exception arising from transitional circumstances. These claimed errors comprise the issues that I address after setting out the general principles.

C. Analysis

(1) The governing principles

[10] In Jordan, the Supreme Court replaced the formula in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25 for determining whether the delay in the trial of an accused breached s. 11(b) of the Charter. The court set ceilings at 18 months from the date of the charge to the likely date of the verdict for cases tried in provincial courts and 30 months for cases tried in superior court, or cases tried in the provincial court after a preliminary inquiry: Jordan, at para. 46.[^2]

[11] Net delay that exceeds the ceilings, being total delay less defence delay, is presumptively unreasonable, but the Crown can rebut the presumption by showing the excessive delay was caused by "exceptional circumstances": Jordan, at para. 68. These are circumstances that "lie outside the Crown's control" in that they are "reasonably unforeseen or reasonably unavoidable" and the Crown cannot "reasonably remedy the delays emanating from those circumstances" (emphasis in original): Jordan, at para. 69.

[12] The categories of exceptional circumstances are not closed but, "in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases": Jordan, at para. 71. Discrete events include "medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge)": Jordan, at para. 72. The period of delay caused by such a discrete event is subtracted from the net period of delay to determine whether a ceiling has been exceeded: Jordan, at para. 75.

[13] This is also true for particularly complex cases including those in which the Crown, in the exercise of prosecutorial discretion, proceeds jointly against multiple co-accused, "so long as it is in the interest of justice to do so": Jordan, at paras. 77, 79 and 80.

[14] Finally, Jordan also established the "transitional exceptional circumstance" for charges brought before the decision was released. This exception is to be applied contextually "when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed": Jordan, at para. 96, referring to Morin. The Supreme Court noted in R. v. Cody, [2017] 1 S.C.R. 659, [2017] S.C.J. No. 31, 2017 SCC 31, at para. 74: "Where a balancing of the factors under the Morin analysis, such as seriousness of the offence and prejudice, would have weighed in favour of a stay, we expect that the Crown will rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework."

[15] When the possibility of a breach of the Jordan ceiling looms, then the Crown is required to take action to mitigate the problem. In order to justify a delay in excess of a Jordan ceiling, the Crown must "show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling" (emphasis in original): Jordan, at para. 70. The court added that: "The Crown, we emphasize, is not required to show that the steps it took were ultimately successful - rather, just that it took reasonable steps in an attempt to avoid the delay": Jordan, at para. 70.

[16] The Supreme Court affirmed its resolve that the Jordan ceilings be applied rigorously in Cody and most recently in R. v. Thanabalasingham, [2020] S.C.J. No. 18, 2020 SCC 18.

(2) Application of the governing principles

[17] As noted, the Crown argues that the application judge made three errors in refusing to deduct the 11-month adjournment from her calculation of net delay: first, regarding the delay attributable to the complexity of the case; second, regarding the unexpected illness of two judges as a discrete event; and third, regarding the exception arising from transitional circumstances. I will address these in order.

(a) Did the application judge err in failing to account for the delay attributable to the complexity of this case?

[18] The application judge agreed with O'Marra J. that the case was complex within the meaning of Jordan. She rejected the Crown's argument that there was additional complexity related to the 11-month delay flowing from two new initiatives by the defence, which she described as "the potential increase in documents flowing from Mr. Prentice's third party records application, which would be heard and determined in advance of the trial, or the large number of defence witnesses proposed by Mr. Smith": at para. 34. The Crown argues inferentially that the 12- week trial estimate was too short and that this should have changed the application judge's Jordan calculus.

[19] In the application judge's view, these were not additional complexities justifying the delay. She noted that all of the parties were ready to proceed as of the February 2018 trial date. She said: "In my view, the 12 weeks scheduled for trial is sufficiently long for the trial judge to manage issues that may arise from the third party records or the number of potential defence witnesses": at para. 34. In her view: "None of the new issues raised by the Crown in this application amount to a novel or fresh complexity that justify the [11-month] delay."

[20] I would defer to this experienced judge's assessment of the requirements of the case and the ability of a trial judge to take things in stride in the trial time provided.

[21] The application judge concluded, at para. 35: "the relevant complexity arises from the challenges in scheduling a trial of this length, and is inextricably linked to the discrete event of two judicial illnesses", to which I now turn.

(b) Did the application judge err in failing to account for the delay attributable to the unexpected illness of two judges as a discrete event?

[22] I first set out the application judge's reasoning and then address the Crown's arguments.

(i) The application judge's reasoning

[23] The application judge said, at para. 36, that the discrete event of two judicial illnesses could justify an adjournment for "some 4-6 weeks or for some other modest period until a judge was available", noting that doing so "would be a reasonable approach, in accordance with the Jordan framework". The application judge then indicated, at para. 39, that she would be prepared to deduct two to three months for Jordan purposes. Therefore, the range of reasonable time she set for the institutional response to this discrete event of two judicial illnesses was up to three months.

[24] The application judge stated that "a trial judge's illness, as a discrete event, is distinct from the delay caused by scarce judicial resources": at para. 37. She added that even if the 11-month delay were abridged by up to three months, "the net delay for all Applicants still significantly exceeds the Jordan presumptive timeline of 30 months or 2 1/2 years": at para. 39.

[25] The application judge did not agree that the full 11-month delay could be counted as the result of exceptional circumstances and asserted: "the amount of time -- 11 months -- that the Crown seeks to deduct from net delay due to exceptional circumstances is not acceptable in this post- Jordan world": at para. 36.

[26] The application judge identified two causes for the 11-month delay that she did not fully differentiate. First, she said that the delay was attributable to the lack of judicial resources in Toronto. Second, she noted, at paras. 30 and 32, that the resource issues compelled the court to triage cases and give priority to those considered to be more worthy of trial.

[27] In making these findings the application judge relied on McMahon J.'s explanation of the situation he faced as the long trial team leader, quoting him verbatim, at para. 37:

On January 25, 2018: [On this occasion McMahon J. warned the parties that there might not be a trial judge available.] Okay, so the one thing I will give people the heads up on in relation to it is with the number of judges they've given me for the criminal matters scheduled. Right now, that was why I was hoping that other case might turn into a resolution. Quite practically speaking with the number of homicides, attempt murders and gun cases I have going, right now I do not have a trial judge to do this case. This will be the first case right now. That may very well change between now and then, but I thought in fairness to counsel, this is the first time I've had to say this post Jordan, but in relation to this indictment right now, unless they somehow give another judge or a new appointment or one of the long trials resolves in the next few weeks, that's where we're at . . .

. . . So, I'll do the best we can . . . And if we could just free up four or five murder cases to help out we would, but I can't . . .

On February 26, 2018: [The trial date] . . . So I've lost two criminal judges in a couple of days and right now because of those medical challenges they're facing I had to pull a judge off this case to deal with a person who is in custody on a six-week trial and I don't have anybody to replace that judge. So it is frustrating because everybody should get to trial in a timely fashion . . .

On March 1, 2018: It's just the frustration of this Court with not having sufficient resources to do the job, despite everybody's best effort.

So despite my efforts of getting an additional resource from another region, quite frankly, unless, as we talked about yesterday - I just added up, we have 44 homicides scheduled this year in Toronto to be tried. And we've been resolving some of them and what we've been doing it, but I can only do what I can do and Mr. Lockner, I'm out of, I'm out of options. The first time I have trial time for this is January of 2019 and the reason for the delay would be the unavailability of this court to be able to provide a judge to do the case. So it's not something we've had to do before in a long trial, but that's where we are. We're hoping to get additional judges to complement. We've asked the Federal government for that. We don't have those. It is frustrating, but we can only do with what we got. So . . .

And I understand all the accused are ready, able and go to trial as is the Crown, and the fault lies with myself and the Court for not providing a judge.

(Emphasis added)

[28] The application judge explained her assessment of the time needed to adjust to the discrete event of two simultaneous judges becoming ill, at para. 38:

There is a heavy and challenging caseload of criminal and other cases at the Superior Court in Toronto. Given the existing complement of judges, there is very little, if any, flexibility to respond to sudden absences. Pursuant to the Jordan framework, an exceptional circumstance is one that must be reasonably unforeseen or unavoidable. It is, of course, the case that the illness of any particular judge is not reasonably foreseeable. However, it is reasonably foreseeable that, from time to time, judges will be unavailable. In a system that is already experiencing enormous pressure, it is no surprise that such unavailability will trigger serious and challenging scheduling issues, especially when 12 weeks of trial time is required. These scheduling issues include making difficult decisions about the priority in which cases proceed. The delay was also avoidable had there been the proper judicial complement.

[29] Drawing on McMahon J.'s explanation for the long adjournment, the application judge stated, at para. 41: "To meet the Jordan timetable, it is axiomatic that courts must be properly resourced with the appropriate complement of judges." She added that "despite serious and creative efforts made to find a solution, resource issues prevented the court from being able to meet its Jordan obligation".

[30] The application judge described these regrettably unsuccessful efforts at paras. 30-31:

The Crown looked into whether this case could take priority over other scheduled cases, and whether this case could be heard in the time slotted for cases that had resolved. The Crown also points to efforts made by the Court. In this regard, McMahon J. carefully reviewed the list of long trials scheduled for the 361 University Avenue courthouse to determine priority, and contacted two other judicial regions in the GTA to inquire whether there was any excess judicial capacity that could be "loaned" to Toronto for a 12-week trial.

(Emphasis added)

(ii) The Crown's arguments

[31] The Crown makes five arguments in support of its position that the 11-month delay falls within the Jordan deductions. I deal with each in turn.

[32] First, the Crown points to the absence of evidence to explain the application judge's factual findings on the lack of judicial resources in Toronto.

[33] I would not give effect to this argument for two reasons. First, it is the Crown's responsibility to adduce evidence on the reasons for delay that impinge on Jordan ceilings: Jordan, at paras. 81 and 105; and see the application judge's reasons at paras. 15 and 42.

[34] My second reason for rejecting the Crown's argument on the absence of evidence is that Superior Court judges know how many vacancies exist in the local complement at any one time. This is a fact of which a judge can take judicial notice, as Jordan noted at para. 89. See also R. v. Rice, [2018] J.Q. no 783, 2018 QCCA 198, 44 C.R. (7th) 83. In this case the application judge did not set out the number of vacancies in Toronto at the relevant time, but she knew that there was a shortfall.

[35] The Crown's second argument is that it need only demonstrate that substantial efforts were made to take reasonable steps to avoid and address the problem that arose. Compliance with s. 11(b) of the Charter does not require success. This argument invokes the court's statement in Jordan: "The Crown, we emphasize, is not required to show that the steps it took were ultimately successful -- rather, just that it took reasonable steps in an attempt to avoid the delay": at para. 70.

[36] The application judge noted that the Crown and the court took "serious and creative efforts . . . to find a solution, [but] resource issues prevented the Court from being able to meet its Jordan obligation". She concluded that: "The delay was simply too long to be considered reasonable": at para. 41.

[37] The Crown asserts that para. 70 of Jordan requires the case to proceed despite the lack of success in mitigating the delay.

[38] I disagree. I do not read Jordan as making acceptable any delay once reasonable but unsuccessful efforts have been made by the Crown and by the court to get a trial heard. The Supreme Court's decision must be read as a whole, in light especially of the first paragraph:

Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance. Section 11(b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons "to be tried within a reasonable time".

[39] To endorse the approach asserted by the Crown would foster the culture of complacency which Jordan condemned, at para. 4, along with Cody, at para. 1, and Thanabalasingham, at para. 1.

[40] To put the point plainly, I agree with the application judge that the additional delay was just too long.

[41] The Crown's third argument is that the application judge did not deduct a single day on account of exceptional circumstances in her Jordan calculation. The Crown says that some deduction is mandatory and that the application judge's failure to do so is fatal.

[42] I would not give effect to this argument. The application judge said, at paras. 36 and 39, that she would be prepared to deduct up to three months to the discrete circumstance of two judges falling ill. This was nowhere near the 11 months that any exceptional circumstances deduction would need to overtake.

[43] However, there is no evidence on this issue on which the application judge could base an estimate that the delay caused by two judicial illnesses should be no more than three months. Her estimate cannot serve as a norm. But I would agree with the application judge, on the basis of common sense and the Superior Court's decision to set the priority for this trial behind numerous others, that the delay caused by scarce judicial resources could not tolerably be permitted to consume all of, or even most of, the actual 11-month delay.

[44] The Crown's fourth argument is that prosecutions are a provincial responsibility, as is the operation of the superior courts in the province. The fault, if any, in this case, counsel asserts, lies with the federal government not the provincial government, and the provincial Crown is not answerable for the federal government's delay in increasing the judicial complement and filling vacancies.

[45] I would not give effect to this argument because it ignores the appellants, who are the right-holders under the Charter. It matters not at all to the respondents or to the Charter which level of government is at fault. The only question from the Charter's perspective is whether the delay is unacceptable in accordance with the Jordan principles. The court's focus in the analysis must be on the right-holder, not on the Crown: Jordan, para. 19.

[46] Fifth, and somewhat inconsistently, the Crown argues that the federal government's response to Jordan takes time to implement and that includes the appointment of additional judges to the complement in Toronto by the federal government.

[47] I would not accept this argument. The Supreme Court released its reasons in Jordan in July 2016. The system of justice must now live firmly in the post-Jordan world.

(c) Did the application judge err in failing to account for the delay attributable to the "transitional exceptional circumstance" established in Jordan?

[48] This prosecution started before the release of Jordan so this case is theoretically eligible for the application of the transitional exception. However, the application judge noted: "The Crown quite properly submitted that the transitional exceptional circumstances have no application here, given that the delay that is the focus of this application occurred well after the release of Jordan in July 2016": at para. 43.

[49] The Crown now argues that the application judge should have found that the transitional exception justified some or all of the 11-month delay after February 26, 2018.

[50] I would not give effect to this argument, for two reasons. First, the application judge cannot be faulted for not dealing with an issue the Crown conceded. This court will only rarely and in circumstance where justice demands it consider a new issue on appeal: Guindon v. Canada, [2015] 3 S.C.R. 3, [2015] S.C.J. No. 41, 2015 SCC 41, at para. 22. No new facts are needed to dispose of the issue, so I will address it briefly.

[51] Second, the application judge's logic is correct. In this context, the 11-month delay was the result of the sudden illness of two judges. This was a discrete event and cannot reasonably be rooted in any slow rhythm the parties might have developed in reliance on Morin. The Crown led no evidence that such reliance influenced the progress of this case past the first s. 11(b) application and provided no analysis or calculation of how the case would have progressed under Morin.

[52] I note in passing that O'Marra J. made use of the time provided by the transitional exception in dismissing the first s. 11(b) application. There is an argument that the transitional exception was entirely consumed then and should have no further application. However, it is conceivable that some cases will remain transitional even after a first s. 11(b) application is decided under the transitional exception. I expect the number of such cases to be limited and dwindling.

[53] Moreover, the Morin analysis weighs in favour of a stay in this case. Under Morin, courts were required to balance four factors: (1) the length of the delay, (2) the waiver of any time periods by the accused, (3) the reasons for delay and (4) the prejudice to the accused. Courts considered a variety of reasons for delay, including: (1) inherent delay, (2) defence delay, (3) Crown delay, (4) institutional delay and any other reason that did not fall into one of the established categories.

[54] Under Morin, the acceptable ranges for institutional delay were eight to ten months in provincial court, and six to eight months in superior court: Morin, at pp. 798-99. Total institutional delay could generally be justified in the range of 14-18 months: Thanabalasingham, at para. 8.

[55] In this case, the total delay at the time of the first s. 11(b) application was 44 months. Only short periods were waived. According to O'Marra J. the reasons for delay could be broken down roughly as follows:

Reason for Delay O'Marra J.'s Totals

Intake/Inherent Delay 14.75 months

Defence Delay 9.75 months

Institutional Delay 15 months (8.25 in OCJ

and 6.75 in SCJ)

Crown Delay 4 months

[56] Justice O'Marra calculated the institutional delay at roughly 15 months, comprised of 7.5 months in the Ontario Court of Justice and 6.75 months in the Superior Court of Justice. To this he added four months of Crown delay. Faced with that result, O'Marra J. was right to apply the transitional exception, particularly in light of the complexity of the case. At that point, the case was generally within Morin guidelines.

[57] However, by the time of the second s. 11(b) application, the total delay had reached 60.5 months and institutional delay had reached 26 months. Once the four months of Crown delay were taken into account, this case would have exceeded the Morin guidelines for combined Crown and institutional delay by 12 months.

[58] The final consideration in Morin is the balance between prejudice to the accused and the societal interest in the adjudication of the case on its merits. Here, the respondents have not suffered actual prejudice to their liberty, security of the person, or fair trial rights, but the long delay in these proceedings gives rise to a strong inference of prejudice: R. v. Godin, [2009] 2 S.C.R. 3, [2009] S.C.J. No. 26, 2009 SCC 26, at para. 31; R. v. J.C.P., [2018] O.J. No. 6918, 2018 ONCA 986. The affidavits filed with the application judge describe stress, anxiety, lost employment opportunities, legal fees and uncertainty about the future. While there is a strong societal interest in the adjudication of this case on its merits given the scope of the alleged fraud, the delay is not acceptable.

[59] I conclude that the Morin analysis weighs in favour of a stay, not a further justification of the delay under the Jordan exception for transitional circumstances. To repeat the Supreme Court's words: "Where a balancing of the factors under the Morin analysis, such as seriousness of the offence and prejudice, would have weighed in favour of a stay, we expect that the Crown will rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework": Cody, at para. 74. This is not one of those rare cases.

D. Disposition

[60] I would dismiss the appeal for these reasons.

Appeal dismissed.

[^1]: The difference arose because Villanti, Lloyd and Chaudhary were granted a five-month adjournment to retain counsel, which the application judge counted as defence delay for the purposes of their individual Jordan calculations.

[^2]: In this court, see R. v. Jurkus, [2018] O.J. No. 2899, 2018 ONCA 489, 363 C.C.C. (3d) 246; R. v. Gopie (2017), 140 O.R. (3d) 171, [2017] O.J. No. 4963, 2017 ONCA 728; R. v. Coulter (2016), 133 O.R. (3d) 433, [2016] O.J. No. 5005, 2016 ONCA 704; and R. v. Manasseri (2016), 132 O.R. (3d) 401, [2016] O.J. No. 5004, 2016 ONCA 703, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 513.