Court File and Parties

Date: November 4, 2016

Court File No.: Brampton 15-2371

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Matthew Luoma

Before: Justice P.A. Schreck

Heard on: September 19-20, 2016

Counsel

P. Quilty ..................................................................................................... counsel for the Crown

P.B. Keaney .......................................................................................... counsel for the defendant

Reasons for Judgment

SCHRECK J.:

[1] Central Issue

The central issue in this case is whether the point in time from which delay is calculated for the purposes of s. 11(b) of the Charter must always be when the Information is sworn. Matthew Luoma was arrested on drinking and driving charges on November 28, 2014, but for some reason no Information was sworn until over two months later. Mr. Luoma's trial began almost 22 months after his arrest. He alleges that his right to a trial within a reasonable time has been breached as the total delay exceeds the 18-month ceiling established in R. v. Jordan, 2016 SCC 27.

[2] Crown's Position

The Crown submits that the time should be calculated from when the Information was sworn, not the date of arrest. As a result, once defence delay is subtracted, the total delay is under 18 months. Even if it is not, the Crown submits that there are transitional exceptional circumstances justifying the delay.

[3] Court's Conclusion

For the reasons that follow, I conclude that the delay should be counted from the time of arrest. The application is granted and the charges are stayed.[1]

I. EVIDENCE

A. The Arrest and Swearing of the Information

[4] Arrest and Release

Matthew Luoma, a resident of Sudbury, Ontario, was arrested in Brampton on November 28, 2014 on charges of operating a motor vehicle while his ability to do so was impaired and while the concentration of alcohol in his blood exceeded the legal limit. He was released on a Promise to Appear which required him to attend a Peel Regional Police division on December 8, 2014 to be fingerprinted and photographed in accordance with the Identification of Criminals Act, which he presumably did.

[5] First Court Appearance

The Promise to Appear also required Mr. Luoma to attend court in Brampton on December 17, 2014. On that date, he travelled from Sudbury to attend court but found that his name was not on the docket. Mr. Luoma obtained documentation from the Peel Police attesting to his attendance in court. He also attended the Crown Attorney's Office and completed a disclosure request form.

[6] Delay in Swearing Information

As it turns out, for reasons which were not fully explained, the police did not swear an Information following Mr. Luoma's release on a Promise to Appear, as required by s. 505 of the Criminal Code. An Information was finally sworn on February 4, 2015, over two months later and Mr. Luoma was served with a summons requiring him to attend court on March 4, 2015.

B. Disclosure Requests and the Crown Pre-Trial Conference

[7] Initial Disclosure and Adjournments

On February 23, 2015, counsel retained by Mr. Luoma wrote to the Crown requesting disclosure. An initial disclosure package was provided to counsel's agent on the first court appearance on March 4, 2015. The matter was adjourned to April 1, 2015 and then to April 23, 2015. On that date, the Court was advised that a Crown pre-trial was scheduled for May 26, 2015, so the matter was adjourned to May 28, 2015.

[8] Crown Pre-Trial and Outstanding Disclosure

Following the Crown pre-trial, Crown counsel wrote a letter to the applicant's counsel indicating that she had requested a typed version of one of the officer's notes that were illegible, video of the booking and cells areas of the police division, and records relating to the maintenance of the Intoxylizer.[2] The booking and cells videos had been mentioned in the initial disclosure request.

[9] May 28, 2015 Appearance

On the May 28, 2015 court appearance, the disclosure relating to the Intoxylizer was provided. Crown counsel who appeared in court seemed to be under the impression that this was the only outstanding disclosure. The matter was adjourned to June 25, 2015 to allow counsel to review the disclosure that had been provided. On that date, the agent for the applicant's counsel advised the Court that some disclosure was still outstanding. The matter was then adjourned to July 16, 2015.

[10] Continued Disclosure Issues

On June 29, 2015, Crown counsel wrote to the applicant's counsel indicating that the booking video and other items were available to be picked up. The new disclosure was picked up on July 9, 2015, but apparently did not include the booking video. On July 16, 2015, the Court was advised that some disclosure remained outstanding and the matter was adjourned to July 30, 2015. On that date, the agent for the applicant's counsel advised the Court that a Crown pre-trial conference was scheduled for August 5, 2015. The matter was accordingly adjourned to August 13, 2015. On that date, the agent for the applicant's counsel requested that the matter be adjourned to September 3, 2015 so that counsel could have discussions with his client.

[11] September 2015 Correspondence

On September 2, 2015, counsel for the applicant wrote a letter to the Crown listing the disclosure items said to be outstanding, including the booking video. At the court appearance the following day, the Court was advised that a judicial pre-trial was scheduled for October 19, 2015, so the matter was adjourned to October 22, 2015.

[12] Crown's Response to Outstanding Items

On September 4, 2015, Crown counsel wrote to the applicant's counsel noting that some of the items listed in his September 2 letter had not been previously requested. She also advised that she had made another request of the police to provide the booking video, which appears not to have been included in the package that was picked up on July 9.

C. The Re-Scheduled Judicial Pre-Trial and Setting of the Trial Dates

[13] Rescheduling of Judicial Pre-Trial

About a week before the October 19, 2015 judicial pre-trial, the applicant's counsel wrote to the trial co-ordinator asking that it be rescheduled as he was unavailable at the appointed time, although he was available earlier in the day. The trial co-ordinator was unable to accommodate the request. As a result, the judicial pre-trial did not take place. A new judicial pre-trial was scheduled for December 21, 2015. At the next appearance on October 22, 2015, the matter was adjourned to January 14, 2016 at the request of the Applicant's counsel, who was away until the second week of January.

[14] Trial Dates Set

On January 14, 2016, trial dates of September 19 and 20, 2016 were scheduled.

II. ANALYSIS

A. Overview: The New Framework

[15] Jordan Framework

On July 8, 2016, the Supreme Court of Canada released its judgment in R. v. Jordan, in which it established a new framework to be applied in s. 11(b) Charter applications. At the heart of the new framework is a "ceiling" beyond which delay is presumptively unreasonable unless the Crown can establish that the circumstances are exceptional. In this case, that ceiling is 18 months.

[16] Approach Required by New Framework

The approach required by the new framework was recently summarized in R. v. Coulter, 2016 ONCA 704 at paras. 34-40:

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

2. Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

3. Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

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

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

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

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

[17] Application to Cases in System

The new framework applies to cases currently in the system: Jordan at para. 95. However, for those cases, the determination of whether exceptional circumstances exist will take into account the parties' reasonable reliance on the law as it previously existed: Jordan at para. 96.

B. The Total Delay

(i) The Proper Starting Point

[18] Calculation of Total Delay

The total delay, as that term is used in Coulter, is usually easy to determine. However, in this case the Information was not sworn until over two months after Mr. Luoma's arrest. If the total delay is calculated from the time of arrest, it is 21 months and three weeks. If it is calculated from the time the Information was laid, it is 19 months and two weeks. Given my conclusions respecting defence delay as outlined later in these reasons, the calculation of the total delay will determine whether the net delay is over or under the ceiling.

(ii) R v. Kalanj

[19] Kalanj Precedent

In R. v. Kalanj, the Supreme Court of Canada held that the meaning of the term "charged with an offence" in s. 11 of the Charter refers to the time at which an Information is sworn. While there was some suggestion during submissions that the language in Jordan has altered the analysis such that the time now begins to run at the time of arrest, I see nothing in Jordan that supports that conclusion. Kalanj is not mentioned in Jordan, and it is difficult to accept that the Court overruled its own earlier decision without saying so: R. v. Gandhi, 2016 ONSC 5612 at para. 4.[3]

[20] Unfairness of Kalanj Application

In this case, given my conclusions respecting defence delay, calculating the delay from the swearing of the Information would mean that the failure of the police to proceed in a timely fashion had the effect of relieving the Crown of the burden of justifying presumptively unreasonable delay. The Crown acknowledges the apparent unfairness of this, but submits that I am bound by Kalanj and that any apparent unfairness must be taken into account at some other point in the analysis, such as whether the defence can establish that the case took markedly longer than it reasonably should have.

[21] Pre-Jordan Approaches to Delay

The approach advocated by the Crown has been followed in some pre-Jordan cases where there was a delay between the time of arrest and the time the Information was sworn. For example, in R. v. Duszak, [2013] O.J. No. 5025 (C.J.), Green J. found that the delay in the swearing of the Information in that case caused patent unfairness. To remedy the situation, Green J. determined that the "intake period" should begin at the time of arrest, which would have the effect of shortening the period of time that would otherwise be treated as neutral (at para. 51):

Restated: irrespective of the date on which an Information is finally sworn, I see no reason why, in a routine case of this nature, the period neutrally attributed to the need to assemble, review and distribute the disclosure materials ought not to commence upon a defendant's release from the station. Whether an Information is sworn the same day or three weeks after an accused's arrest and release, as here, on a Promise to Appear, the essential disclosure package in such cases should be available no later than four weeks after the accused walks out of the police station.

See also R. v. Hashmi, [2016] O.J. No. 1116 (C.J.) at para. 32 and R. v. Kopalasingam, [2016] O.J. No. 4200 (C.J.) at paras. 21-26.

[22] Difficulty with Duszak Approach Post-Jordan

The difficulty with applying the Duszak approach to the post-Jordan framework is that the "intake period" is no longer separated from the overall net delay. The focus is now on the ceiling. The burden on the applicant of establishing that delay is unreasonable for cases under the ceiling is significant and stays will only be granted in "clear cases": Jordan at para. 83. The burden on the Crown of establishing that the delay is reasonable for cases over the ceiling is also significant. In many if not most cases, whether the net delay is over or under the ceiling will effectively determine the outcome of the application. As a result, even if the delay in swearing the information is taken into account in some way, the inaction of the police can nonetheless result in the Applicant carrying a far heavier burden than he or she otherwise would. In that case, the rhetorical question asked by Green J. in Duszak at para. 47 still arises: "Can it truly be the law that the scope of an accused's constitutional rights can be defined by the whim, arbitrary practice or convenience of the police?" I do not think that it can.

[23] Stare Decisis and Contextual Application

There is no doubt that I am bound by Kalanj, in which the Court clearly concluded that the calculation of delay for s. 11(b) purposes starts with the swearing of the Information. However, in my view the doctrine of stare decisis does not require that I apply that conclusion in a contextual vacuum. Rather, I must consider the principles that led the Court to conclude as it did and apply those same principles to the case before me.

(iii) The Rationale Behind the Conclusion in Kalanj

[24] Kalanj Facts and Issue

In Kalanj, the accused were arrested and released on the same day without any charges being laid. Over eight months later, an Information was sworn. During the time between the initial arrest and the swearing of the Information, the police had reviewed numerous intercepted communications and had interviewed witnesses who had been identified through the interceptions. The central issue before the Supreme Court of Canada was whether the pre-charge delay should be considered in the s. 11(b) calculus.

[25] Kalanj Reasoning

After reviewing a number of earlier decisions, a majority of the Court, per McIntyre J., concluded that the term "charge" in s. 11 of the Charter refers to the swearing of the Information. In coming to that conclusion, the majority noted that different sections of the Charter were designed to apply to different parts of the judicial process. Section 10 affords certain protections to individuals subject to arrest while s. 11 applies to the later stage when judicial proceedings have been instituted. The majority explained the reason for the distinction (at para. 19):

The length of the pre-information or investigatory period is wholly unpredictable. No reasonable assessment of what is, or is not, a reasonable time can be readily made. Circumstances will differ from case to case and much information gathered in an investigation must, by its very nature, be confidential. A court will rarely, if ever, be able to fix in any realistic manner a time limit for the investigation of a given offence. It is notable that the law -- save for some limited statutory exceptions -- has never recognized a time limitation for the institution of criminal proceedings. Where, however, the investigation reveals evidence which would justify the swearing of an information, then for the first time the assessment of a reasonable period for the conclusion of the matter by trial becomes possible. It is for that reason that s. 11 limits its operation to the post-information period. Prior to the charge, the rights of the accused are protected by general law and guaranteed by ss. 7, 8, 9 and 10 of the Charter. [Emphasis added].

[26] Implicit Presumption in Kalanj

The majority's primary consideration was that the reasonableness of the investigatory process could not and should not be assessed by the courts. Such an assessment only becomes possible when "the investigation reveals evidence which would justify the swearing of an information." Implicit in this reasoning is the presumption that once the police have sufficient evidence to justify swearing an information, they should do so.

[27] Section 505 of Criminal Code

As the majority in Kalanj noted (at para. 21), the timing of the swearing of the Information is statutorily controlled by s. 505 of the Criminal Code, which provides as follows:

505. Where

(a) an appearance notice has been issued to an accused under section 496, or

(b) an accused has been released from custody under section 497 or 498,

an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court.

[28] Police Non-Compliance with Section 505

In this case, the police failed to comply with s. 505. I cannot accept that the scope of constitutional protection can be potentially diminished because the police fail to do what the Criminal Code requires of them.

(iv) A Principled Application of Kalanj

[29] Principled Distinction

In my view, the conclusion in Kalanj was never intended to apply to a situation such as in the case at bar where the investigation has been completed and the accused has been arrested and is subject to the court's process but where the police, in contravention of s. 505, have simply failed to have an Information sworn due to some administrative oversight. In my view, the principles in Kalanj lead to the conclusion that the s. 11(b) clock starts to tick at the point when an Information is sworn or ought to have been sworn. Under this approach, the concerns driving the result in Kalanj about the inability of the courts to assess the investigatory progress of the case simply do not arise and the police are not able to artificially manipulate the s. 11(b) calculus, either intentionally or inadvertently.

[30] Support from Milani

I find support for my conclusion in R. v. Milani (2014), 2014 ONCA 536, where the Court considered a situation where a charge was withdrawn and then re-laid:

Section 11(b) serves to protect the charged person's right to freedom and to be dealt with fairly and without delay within the court system. The objective is to have an efficient system for dealing with accused persons. The ambit of s. 11(b) does not extend on a societal level to the speedy investigation of crime. Extending the protection of s. 11(b) to persons who are not actively charged with an offence would not advance the objectives of this protection.

There is a caveat however. There are circumstances in which unilateral state action may control whether or not charges are withdrawn or relaid. In such circumstances, where the formal charge has been withdrawn with the intention of laying a new charge, or an information has been quashed with a new information laid, it makes sense to consider the entire period from when the first charges were laid as part of the s. 11(b) analysis. In such circumstances, the person, although not formally charged during the "gap" period, remains subject to the judicial process, and his s. 11(b) interests will continue to be affected by the knowledge or expectation that further charges are imminent. It is reasonable to conclude that he remains subject to the process of the court. That is precisely what occurred in R. v. Antoine.

For all of these reasons, I would interpret s. 11(b) as being engaged during any period that an accused person is in fact subject to charges, or when a person no longer actively charged remains subject to the very real prospect of new charges. [Emphasis added].

[31] Application to Present Case

There is no principled distinction between the situation described in Milani and that in the case at bar. While the applicant may not have been "formally charged" between November 28, 2014 and February 4, 2015, he was certainly "subject to the very real prospect" of being charged. Not only was the Applicant "subject to the very real prospect" of being charged, he believed that he was and was subject to the requirements of the Promise to Appear. He travelled from Sudbury to attend court. He attended at the police station to have his photographs and fingerprints taken and was subject to a 90-day suspension of his driver's licence pursuant to s. 48.3 of the Highway Traffic Act.

[32] Other Cases Supporting This Approach

Several cases have held that notwithstanding the conclusion in Kalanj, a person is "charged" once they are subject to the processes of the court. In R. v. Egerov, [2005] O.J. No. 6171 (C.J.), Duncan J. stated (at note 2):

The Crown's Factum contends that the time runs from the swearing of the information, March 25. This position is supported by Kalanj, a case where the accused was arrested and released without charge or process. An information was sworn eight months later. But in the case of release on an appearance notice, promise to appear, undertaking or recognizance before officer in charge and the charge being laid thereafter (i.e. the procedure in section 505 of the Code), it is difficult to see that the accused is not "charged" upon his being subject to the obligations imposed by the release. Indeed the release document itself refers to him as being an "accused" who is alleged to have committed an offence: see forms 9, 10 11 and 11.1 CC

See also R. v. Swaminathan (2015), 21 C.R. (7th) 372 (Ont. C.J.) at paras. 18-23 and R. v. Nash, [2014] O.J. No. 4878 (S.C.J.) at para. 7.

[33] British Columbia Approach

More recently, in R. v. Millar, 2016 BCSC 1887 it was also held that the critical point in time for the purposes of a s. 11(b) analysis is when the accused becomes subject to the process of the court. That case involved a fact situation opposite to that in the case at bar in that the Information was sworn but the accused did not become aware of its existence until he was arrested several months later. Notwithstanding Kalanj, the Court concluded (at paras. 111-136) that the time should be calculated from when the accused was arrested.

[34] Conclusion on Starting Point

For the foregoing reasons, I conclude that the starting point for assessing the delay in this case is November 28, 2014. The total delay is therefore 21 months and three weeks.

C. Defence Delay

(i) Overview

[35] Components of Defence Delay

The next step in the Jordan analysis is to subtract from the total delay any period which is properly characterized as defence delay. As the Court explained in Jordan, there are two components of defence delay. The first, waiver, has no application in this case as there is no suggestion that the applicant has waived any of the delay. The second was explained in Jordan as follows (at paras. 63-65):

The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance.

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

[36] Difference from Morin Framework

It is important to note that the type of conduct that is considered "defence delay" under the Jordan framework is significantly different than what would have constituted delay caused by the "actions of the accused" under the R. v. Morin framework. In Morin, the majority explained delay caused by the actions of the accused in the following terms (at para. 44):

This aspect of the reasons for the delay should not be read as putting the "blame" on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable.

[37] Narrower Jordan Definition

It is clear that the Jordan definition of defence-caused delay is much narrower than it was under Morin. Under Morin, legitimate tactical decisions that had the effect of lengthening the overall period of delay counted against the defence. Under Jordan, they do not. Only "frivolous" conduct has that effect.

[38] Two Periods of Alleged Defence Delay

In this case, the Crown submits that there were two periods of defence delay: delay caused by the defence's insistence on having full disclosure before setting a trial date and delay caused by the defence's requested rescheduling of the judicial pre-trial. I will consider each in turn.

(ii) Insistence on Disclosure

[39] Initial Disclosure Request

Disclosure, including the booking video, was initially requested on February 23, 2015. Some disclosure was provided at the first court appearance and there was a telephone pre-trial conference between Crown and defence counsel on May 26, 2015. A few days later, on May 29, 2015, Crown counsel wrote a letter to the Applicant's counsel in which she stated:

I am writing to advise, that further to our phone pretrial conducted on May 26, 2015, I requested the following items: typed notes of PC Searchill, booking and cells video, and 8000C disclosure package.

After my review of your disclosure letter and the file, I have determined that disclosure is complete from the Crown's perspective with the exception of the DVD synopsis that remains outstanding. The Crown's office has put in a request for this item, although it is not essential to setting a trial date.

[40] Crown's Argument on Disclosure

The Crown submits that in light of this letter, it was incumbent on the defence to schedule a judicial pre-trial at the next court appearance on June 25, 2015. The defence did not schedule a judicial pre-trial until the September 3, 2015 court appearance. As a result, the period between June 25 and September 3, about two months and one week, is defence delay.

[41] Crown Reliance on Gandhi

In support of this submission, the Crown relies on Code J.'s decision in R. v. Gandhi, 2016 ONSC 5612 and submits that the situation in the case at bar is similar to what occurred in that case, as described in paras. 31-32:

The first of these two periods occurred over the course of three appearances, on June 13, June 27, and August 1, 2014. On all three occasions, Mr. Canton was Crown counsel. The case was over six months old by the time of the first of these appearances and it was almost eight months old by the time of the third of these appearances. As summarized above, Mr. Canton responsibly and forcefully took the position on all three occasions that delay was becoming a concern, that "substantial disclosure" had been made, that it was "certainly ... enough for a JPT," and that judicial management would "benefit" the case by having "the officer in charge attend" in order to resolve ongoing disclosure issues. Mr. Kayfetz resisted this approach and insisted on receiving one "final piece of disclosure" before even setting a date for a JPT. It appears he finally relented on August 1, 2014, under pressure from the Crown, and agreed to set a date for a JPT.

In my view, this is classically an example of what the majority in Jordan described as defence actions that were not "legitimately taken to respond to the charges" and that "directly caused the delay." There appeared to be disclosure problems in this case, partly because many of the relevant documents were in the possession of third parties (the MacPhees and their company, the alleged victim of the fraud, and Mr. Merali and his company, where the cheques were cashed), and partly because the officer in charge was the only officer in the police division assigned to frauds and he needed help. The Justices of the Peace sitting in busy remand courts could not solve this problem but an experienced judge conducting a JPT, with the officer in charge and both counsel present, could solve it. The Crown repeatedly suggested this solution to the problem and the defence repeatedly resisted it.

[42] Distinction from Gandhi

I do not agree that the situation in this case is similar. In Gandhi, the Crown expressed concern about the delay and repeatedly and "forcefully" suggested scheduling a judicial pre-trial in order to resolve outstanding disclosure issues. In this case, other than expressing the opinion that disclosure was "complete from the Crown's perspective", Crown counsel made no comment about the delay. She did not suggest scheduling a judicial pre-trial in her May 29 letter. Furthermore, unlike in Gandhi, where the disclosure issues arose because some of the requested material was in the hands of third parties, in this case the outstanding disclosure related to items in the possession of the police. There was no need for a judge to "solve" the disclosure problem. The Crown simply needed to disclose what had been requested.

[43] Defence Conduct Regarding Disclosure

I accept that the defence is not entitled to "every last bit of disclosure" before setting a trial date: Gandhi at paras. 34-35; R. v. Lahiry (2011), 2011 ONSC 6780 at paras. 106-115. However, an examination of the record in this case reveals that the defence did not insist on every last bit of disclosure before scheduling a judicial pre-trial. In the May 29, 2015 letter, Crown counsel indicated that the items sought by the defence had been requested from the police. At the next court appearance on June 25, 2015, Crown counsel appearing in court (who was not Crown counsel who had written the letter) indicated that a three-week adjournment would be sufficient to obtain the outstanding disclosure. At the next appearance on July 16, 2015, the agent indicated that he had been told that the disclosure would be provided "this week, either today or tomorrow". The matter was accordingly adjourned until July 30, 2015. At each stage, the defence was led to believe that disclosure was imminent.

[44] Booking Video Not Provided

By the July 30, 2015 date, a Crown pre-trial conference had been scheduled for August 5, 2015. At the next appearance on August 13, 2015, the matter was adjourned to September 3, 2015 so that counsel could obtain instructions. On September 3, the judicial pre-trial was scheduled for October 19, 2015. Importantly, it appears that the booking video had still not been provided by then, as Crown counsel wrote a letter on September 4, 2015 indicating that she had made another request for the police to provide it. Thus, it is clear that the defence was willing to schedule a judicial pre-trial without the booking video and in fact did so.

[45] Conclusion on Disclosure Delay

It is unclear when the booking video was finally provided. It was clearly no earlier than September 4, 2015, over six months after it was first requested. The booking video is created by and in the possession of the police and is routinely requested and provided in drinking and driving cases. While the Crown may have thought that disclosure was complete "from its perspective", the booking video was not "clearly irrelevant" and the defence was entitled to it. There is no reason why it should have taken so long to disclose it in this case. While it would have been open to the defence to schedule a judicial pre-trial earlier, in my view this was not "delay caused solely by the conduct of the defence": R. v. Korzh, [2016] O.J. No. 3910 (S.C.J.) at para. 21; R. v. Hill, (unreported, September 22, 2016, Ont. C.J.) at para. 33. The Crown bears responsibility for it as well. I am far from satisfied that there was "a deliberate and calculated tactic employed to delay the trial." In my view, none of this period can properly be characterized as defence delay.

(iii) The Re-Scheduled Judicial Pre-Trial

[46] Rescheduling Request

A judicial pre-trial had been scheduled for October 19, 2015, to be conducted by teleconference. About a week before it was to take place, counsel for the Applicant attempted to re-schedule the judicial pre-trial to sometime earlier or later on October 19 as he was no longer available at the appointed time. No other time slots were available. As a result, the judicial pre-trial did not take place. At the next court appearance on October 22, 2015, a new judicial pre-trial was scheduled for December 21, 2015. At the request of the defence, the matter was adjourned to January 14, 2016.

[47] Crown's Position on Rescheduling

The Crown submits that but for the conduct of the defence, the trial date would have been set on October 22, 2015. Instead, it was set on January 15, 2016. As a result, this period should be characterized as defence delay.

[48] Court's Analysis of Rescheduling

Counsel for the Applicant submits that because he tried to re-schedule the judicial pre-trial but the trial co-ordinator was unable to accommodate him, the delay is the result of an institutional lack of resources and is not defence delay. I disagree. In this jurisdiction, judicial pre-trials are booked several weeks in advance and take place one after the other, with little or no time in between. The system cannot be expected to keep time free in case counsel need to re-schedule on short notice.

[49] Application of Jordan Principles

In my view, this was a situation where "the court and Crown are ready to proceed, but the defence is not": Jordan at para. 64. Furthermore, the matter could have returned on December 21, 2015 or the following day to set a trial date, but was not because the defence requested that the matter return in the second week of January.

[50] Conclusion on Rescheduling Delay

For these reasons, I conclude that the period between October 22, 2015 and January 15, 2016, a total of just over two months and three weeks, is properly characterized as defence delay.

(iv) Total Defence Delay

[51] Additional Defence Delay

Trial dates of September 15 and 16, 2016 were offered on which the defence was unavailable but the Crown was. The defence accepts that the four days between then and the beginning of the trial is defence delay. This rounds the total defence delay to three months.

D. The Net Delay

[52] Net Delay Calculation

Based on the foregoing, I conclude that the net delay in this case is approximately 18 months and three weeks. As this exceeds the ceiling established in Jordan, the delay is presumptively unreasonable unless the Crown can establish that there are exceptional circumstances.

E. Transitional Exceptional Circumstances

(i) Overview

[53] Transitional Exceptional Circumstances Concept

The Crown submits that in this case there were "transitional exceptional circumstances." This concept was explained in Jordan (at para. 96):

First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply 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. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties' behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties' reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.

The Crown submits that such circumstances exist in this case for two reasons. First, due to the way trials were scheduled under the old framework, there may have been dates when the Crown and the court were available and the defence was not, but this was never noted as it was not relevant at the time. Second, the applicant did not file materials in support of a s. 11(b) application until after the release of Jordan. I will deal with each in turn.

(ii) The Possibility That There May Have Been Earlier Available Dates

[54] Crown's Speculation Argument

The Crown's argument, as I understand it, is as follows. When the parties attended the trial co-ordinator's office on January 15, 2016, trial dates of January 18 and 19, 2016 were offered. Not surprisingly, neither party was available. In keeping with the procedure in place at the time, the defence indicated that it had no availability before June 13, 2016 and, as a result, neither the trial co-ordinator nor the Crown indicated whether they had any availability during this period. Trial dates of July 7 and 8, 2016 were also offered, but neither party was available. Once again, the defence indicated that it had no availability between those dates and September 12, 2016, so there was no inquiry with respect to the court's or Crown's availability. The Crown submits that there may have been dates between January 19 and June 13, 2016 and between July 9 and September 12, 2016 on which the court and the Crown was available but, relying on the law as it existed at the time, the parties did not inquire whether this was the case. This, the Crown submits, somehow constitutes an exceptional transitional circumstance.

[55] Rejection of Speculation Argument

I do not accept this argument. While the Crown is correct that the availability of the court and Crown were not ascertained because of the defence's unavailability, it is unknown what that availability would have been. The time between the setting of the trial date and the date that was chosen was approximately seven months, which is by no means unusual in this jurisdiction. As this is a case where the net delay exceeds the ceiling, the burden is on the Crown to show that the delay was not unreasonable. It cannot discharge that burden by speculating that there may have been dates where the Crown and the court were available and the defence was not. I note that the Crown has adduced no evidence as to its availability during the periods when the defence was unavailable.

(iii) The Fact That No Application Was Brought Prior to the Release of Jordan

[56] Crown's Second Argument

The second argument advanced by the Crown seems to be based on the fact that the trial date was set before Jordan was decided but no s. 11(b) application was brought until after the decision was released. The Crown relies on the following passage from Jordan (at para. 102):

Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one.

As I understand the argument, the lack of an earlier s. 11(b) application shows that the delay in this case would previously have been considered as reasonable, so the release of Jordan should not result in it being considered unreasonable.

[57] Problems with Crown's Argument

There are several problems with this argument. First, counsel for the applicant advised the Court that the failure to bring an earlier application was an error on his part for which he takes responsibility. I have no reason to doubt his word. In any event, there may be many valid reasons why counsel may have chosen not to bring an application before Jordan but would choose to do so now. For example, as observed in Jordan, with the former framework the presence or absence of prejudice was often determinative, yet prejudice was often difficult to establish: Jordan at paras. 33-34. In my view, it would be inappropriate for me to speculate as to why no application was brought earlier.

[58] Delay Would Have Been Unreasonable Under Old Framework

Second, I am far from persuaded that the delay in this case would not have been found to be unreasonable under the former framework. Courts in this jurisdiction did not have a high level of tolerance for institutional delay, and cases with far less delay were routinely stayed: R. v. Reynolds, 2016 ONCJ 606 at paras. 16-17; R. v. Ashraf, 2016 ONCJ 584 at paras. 47-48.

[59] New Framework Not Identical to Old

Third, even if the delay would not have been deemed unreasonable under the old framework, this does not mean that it is reasonable under the new one. The Court said that the release of its decision would not "automatically transform" reasonable delay into unreasonable delay. It did not say that the new framework would always result in the same disposition as the old one.

[60] Prejudice No Longer Relevant

Finally, the only inference that can potentially be drawn from the failure to bring a s. 11(b) application before the release of Jordan is that the delay did not prejudice the applicant. However, the presence or absence of prejudice is no longer part of the s. 11(b) analysis once the presumptive ceiling is reached: Jordan at para. 54.

[61] Conclusion on Exceptional Circumstances

I therefore conclude that the Crown has failed to establish that there are exceptional circumstances in this case, transitional or otherwise.

III. DISPOSITION

[62] Final Order

For the foregoing reasons, the application is granted. The proceedings are stayed.

Justice P.A. Schreck

Released: November 4, 2016.

Footnotes

[1] Mr. Luoma has also applied to exclude evidence on the basis of an alleged violation of his s. 8 Charter rights. Given my conclusion on the s. 11(b) application, I need not decide this issue.

[2] Crown counsel's letter indicates that the initial disclosure request, dated February 23, 2015, was not received by the Crown's office until May 28, 2015. However, the fax confirmation sheet in the Application Record indicates that the initial request was successfully faxed to the Crown's office on February 23, 2015. It appears to have been faxed a second time on May 28, 2015.

[3] Cf. R. v. Wong, 2016 ONSC 5374 at paras. 55-59.