WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: November 21, 2016

Court File No.: Barrie 14-0245

Between:

Her Majesty the Queen

— AND —

S.M. and J.G.

Before: Justice Robert E. Gattrell

Ruling on Applications under ss. 11(b) and 24(1) of the Charter of Rights and Freedoms

Heard on September 12, 2016; Ruling given on September 14, 2016

Reasons released on November 21, 2016

Counsel:

Mr. F. Temple — counsel for the Crown

Mr. T. Hawtin — counsel for the accused, S.M.

Mr. P. Brauti and Mr. A. Alton — counsel for the accused, J.G.

Gattrell J.:

I. Introduction

[1] S.M. and J.G. are young persons within the meaning of the Youth Criminal Justice Act. They are both charged with driving-related criminal offences. They are jointly charged with street racing causing death, street racing causing bodily harm, dangerous driving causing death and dangerous driving causing bodily harm.

[2] The charges arise from the tragic events which occurred on April 14, 2014 on Mapleview Drive at the south end of the city of Barrie. S.M. and J.G. were driving in separate motor vehicles in proximity to one another travelling east on Mapleview Drive. This is a major thoroughfare in the city of Barrie. It is a busy area in which can be found facilities devoted to light industry as well as a large number of retail stores, car dealerships, restaurants and fast food outlets.

[3] At about 6:45 p.m. on the day in question, the car driven by S.M. drove into the driver's side of the car being driven by Teresa Wisch. Her son Ingo, then 13 years old, was in the front passenger seat. The force of the collision killed Ms. Wisch instantly and injured Ingo Wisch. The Crown alleges that in the moments leading up to the crash, S.M. and J.G. were racing.

[4] At the commencement of the trial, counsel for each of the accused persons raised the issue of section 11(b) of the Charter of Rights and Freedoms. That is to say, their right to have a trial within a reasonable time had been violated. Applications in support of the motion had been served on the Crown and filed with the court prior to trial, albeit late and not in accordance with the Rules of this Court. The Crown filed a response. The timing of the filing of the materials meant that I was not able to review them all prior to the commencement of the trial. Nevertheless, the Court heard argument on the issue on September 12, 2016. On September 14, 2016, I ruled that the 11(b) Charter rights of S.M. and J.G. had not been breached in the circumstances of this case. At that time, I indicated that my reasons would follow in due course. These are those reasons.

II. Overview

[5] The 11(b) argument was made in light of the recent decision of the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27. This decision was released on July 8, 2016. In Jordan, the majority of the Supreme Court completely revised the approach to be taken to the assessment of what constitutes an unreasonable delay in the time to trial. The intention was to simplify the 11(b) analysis in a way that allows parties to recognize with greater certainty when anticipated times to trial will run afoul of constitutional requirements and to promote proactive involvement of accused and counsel in seeking to obtain expeditious trial dates. To achieve this, the majority created presumptive ceilings for the provincial and superior courts in this country. Above the ceiling, the delay is presumed to be unreasonable. Below the ceiling, the delay is presumed to be reasonable. The onus is on whichever party is seeking to rebut the presumption. The ceilings are set higher than the guidelines under the previous framework of analysis, which derived from the Supreme Court decision in the case of R. v. Morin, [1992] 1 S.C.R. 771. In doing so, the majority recognizes that cases take longer than they once did because litigation has become more complex. Furthermore, the higher ceilings take into account time periods, such as intake periods, which previously would have been subtracted from the total time when assessing the period of delay. The presumptive ceiling in the provincial courts is 18 months. [Jordan, ¶¶46-53]

[6] Jordan is silent on whether a different presumptive ceiling should apply to matters under the Youth Criminal Justice Act. Defence counsel for both accused in the present case take the position that, for youth, the ceiling should be lower. Mr. Hawtin for S.M. points to pre-Jordan case law in which the Morin guidelines were lowered for accused persons in Youth Court. The very least that can be said is that, if 18 months is the ceiling for adults, it must at best be an extreme outer limit in Youth Court.

III. History of the proceedings

[7] The date of the alleged offences is April 4, 2014. The information was sworn on May 13, 2014. On that date, both accused were arrested and released on bail. They were given a first appearance date of May 27, 2014. As of the first appearance date, both accused had retained counsel and were ready to receive disclosure. At that stage, disclosure was not ready. On June 10, 2014, the Crown provided defence with what was described on the record as a "fairly detailed synopsis" but indicated that the bulk of the disclosure – expected to be many volumes – was not ready yet. The matters were adjourned to July 8, 2014, and then to July 29, 2014 awaiting disclosure. On July 29, 2014, counsel for the Crown stated in court that disclosure was ready and was being sent on that date to defence counsel by courier.

[8] On July 29, 2014, a judicial pretrial was set for October 14, 2014. That pretrial was held before Justice Krelove. It was the first of a series of pre-trials. Justice Krelove took carriage of the subsequent pre-trials which enabled him to case manage a matter that, without appropriate focus by the Crown and admissions by defence, had the potential to result in a very lengthy trial.

[9] Following the October 14th pretrial, the parties appeared in court seeking to set the matter down for trial. They estimated that 10 to 15 days of trial time would be required. All parties were available in the month of May 2015. It was hoped that the trial coordinator could secure sufficient time in the month of May to accommodate this trial. The parties agree, and the transcripts support the inference, that they hoped and, indeed, expected that time would be found in May 2015 to accommodate the trial. At the time of the pretrial in October 2014 counsel for J.G. had only limited availability in 2015 – in the months of May and November 2015. It is perhaps worth noting what Justice Krelove stated on the record at that time:

THE COURT: So I'll indicate that the judicial pre-trial was commenced today. We'll [be] looking to continue the judicial pre-trial. Initial estimate is some 10 to 15 days needed for trial in this matter. And I understand that counsel have indicated that they're free basically in May and so I've asked the trial coordinator to start looking in May and she will be in touch with all three counsel to set aside those days.

[10] On October 2014, the matter was adjourned to January 7, 2015 so that the judicial pretrial could continue. On that date, the parties discovered that sufficient trial time to accommodate this matter was not available in May 2015. They were further advised that, in fact, it never had been. The parties were back in the position of seeking to set a trial. Mr. Alton, who argued the 11(b) motion on behalf of J.G., indicated that Mr. Brauti had kept May 2015 free of commitments but that, by January 7, 2015, the month of November 2015 was no longer available to him. The matter went to February 3, 2015, with the understanding that the parties would contact the trial coordinator to secure new trial dates.

[11] The matter was also put over to March 23, 2015, to continue the judicial pre-trial. By that date, the parties had secured 14 days of trial time in January 2016. The matter was then adjourned to October 23, 2015 for a status hearing and to continue the pre-trial. On October 23rd, a pre-trial was held and the parties again confirmed their availability for the January 2016 dates.

[12] On December 7, 2015, Mr. Brauti, counsel for J.G., brought a motion before Justice Krelove, as the case management judge, seeking to adjourn the January 2016 trial. Ms. Salama, appeared as agent for Mr. Brauti and by way of designation on J.G.'s behalf. The basis for the adjournment application was that Mr. Brauti was involved in a jury trial in the Superior Court in Toronto which had originally been set to finish before the end of the year but was now expected to go into January 2016. It was indicated that no other counsel in Mr. Brauti's firm was available to take the trial in January 2016. It was further indicated that, even if this could have been arranged, J.G. specifically wanted Mr. Brauti to represent him at trial. Ms. Salama stated, "And perhaps most importantly our client has insisted that Mr. Brauti himself conduct the trial."

[13] Both the Crown and Mr. Hawtin for the co-accused, S.M., expressed their extreme disappointment that the trial could not proceed in January 2016 as planned. In the circumstances, however, neither the Crown nor S.M., opposed the adjournment. Justice Krelove, after hearing from counsel, granted the adjournment. What follows is extracted from those proceedings:

MR. HAWTIN: Yes, Your Honour. We're in a difficult position. Mr. M. [1] is interested in having his trial proceed. He's been ready to we hoped to do it much earlier in the year. Unfortunately, the co-accused we are caught up in Mr. Brauti's schedule and it's a joint trial. We're dragged along or delayed as a result of this, I appreciate the position that Mr. G. is in with his counsel. So there's a great deal of reluctance. I think we fortunately accede to the request of counsel for the co-accused, I can't see how we can proceed otherwise. In all the circumstances so much to our chagrin that is the position we find ourselves in.

THE COURT: So I take it, your position is your client is anxious to proceed, but you're not opposed to the application.

MR. HAWTIN: Correct.

MR. TEMPLE: Your Honour, my position is similar to Mr. Hawtin's in that obviously we wanted the trial to proceed but thinking through the matter should I successfully oppose this application, I'm not sure that if there was a conviction that it would be a sound one with a youth not represented in a trial involving a death, I don't see how the trial could continue as scheduled given the materials unless the court sees it a different way around it, I don't as I stand here. I don't see any other way. It's unfortunate. We had three weeks set aside, we had a number of pre-trials on the matter, but I think counsel has outlined how this came to be in terms of the other case is now conflicting. And I knew at one point it was a coroner's inquest that was sort of threatening a conflict in this matter. I know the court made it quite clear that this matter would take precedence over that. Obviously that's changed and there's not much more I can add other than to say we were also very anxious to have the trial begin as scheduled.

THE COURT: So Mr. Temple or others, if the application is granted do we know when we would get another time slot of this length in this court?

MR. TEMPLE: Two things on that point, Your Honour, I understand my friend was going to, if the adjournment was granted check today; we'd all check today.

THE COURT: Okay. So we could do something today.

MR. TEMPLE: That's the hope. I'm not sure if I can clear all the officers in terms of their leave dates today so it may have to be a tentative date. The other hope was and it would require Mr. Brauti and his input if this matter might be shorter if there were certain technical things such as measurements and so forth that we don't have to call. It would shorten the trial considerably. We would get a tentative date today. I can't – I don't see way I can check all the officers involved. We could have them bring it back to confirm that date.

THE COURT: Thank you. So Mr. Hawtin and Ms. Salama both of you have your dates available and Mr. Brauti's dates available.

MS. SALAMA: That's correct.

MR. HAWTIN: Yes, Your Honour.

THE COURT: Thank you. This is an application for adjournment brought on behalf of J.G. in light of his counsel Mr. Brauti not being available for the scheduled trial dates. The trial was scheduled to start on January 5 of 2016. I note the offence date is April 4th, of 2014 and obviously these are serious charges.

I've considered the position of all parties involved in that matter, I've also reviewed the affidavit which sets out the position of Mr. Brauti that he started a trial in the Superior Court in Toronto which was scheduled to be over by the end of the year but for a variety of reasons it's continued really beyond his control it seems and now that trial is set to continue in through January. I note as well, there have been no previous adjournment requests in this particular matter. It does not appear possible to have other counsel for Mr. Brauti's office appear on behalf of Mr. G. and in addition Mr. G. is anxious to have Mr. Brauti as his counsel present at the trial.

Obviously everyone wants to have this matter proceed as expeditiously as possible and it should, but unfortunately this is a situation where the adjournment application will have to be granted. As I've indicated we're anxious to have the matter proceed as soon as possible. So I'm going to invite counsel to speak with the trial coordinator today to see if we can possibly set target dates or something of that nature today.

[14] Counsel attended upon the trial coordinator the same day to get new trial dates. Target dates were obtained for a trial beginning on September 12, 2016 and ending on October 5, 2016. The matter went to December 21, 2015 to confirm those dates and the new trial date was confirmed at that time. The matter also went to June 3, 2016 for a status hearing and to continue the judicial pretrial.

[15] On June 3, 2016, there was a continuation of the judicial pretrial and a status hearing. No mention was made of any anticipated Charter motions at that time.

IV. The 11(b) arguments

A. The defence argument

[16] Mr. Hawtin, for S.M., argues that the delay in the present case puts us well over the presumptive ceiling in Jordan. Furthermore, the ceiling should be even lower for youth, perhaps as low as 12 months. See, R. v. L.B., 2014 ONCA 748; R. v. T.R.. Accordingly, it falls to the Crown to justify the delay. He asserts that he and his client were ready to proceed to trial at an early stage in the proceedings and were always available whenever the court and the Crown were available. His client has had to wait an unreasonably long time for his trial because he has been dragged along by his co-accused. He points to the recent Supreme Court decision in R. v. Vassell, 2016 SCC 26. He says that, as in that case, the Crown in this case should have taken steps to mitigate the prejudice of delay to his client. The Crown, rather than acquiescing to an adjournment of the January 2016 trial date, could have severed the accused and proceeded against his client separately in January 2016. Mr. Hawtin acknowledges that S.M. and J.G. are co-principals on the street racing charge and that this is a compelling factor in favour of a joint trial. He argues, however, that matters had reached the stage where the Crown should have been prepared to forgo a joint trial. If separate trials would jeopardize the street racing charges, so be it. The Crown could still proceed on the charges of dangerous driving causing death and causing bodily harm.

[17] Mr. Hawtin further argued that, rather than seeking a block of time for the trial, the Crown could have suggested that the trial be conducted in stages. It might have been easier to schedule smaller blocks of time with gaps between them than to seek a more or less continuous block of 10 to 15 days. Such an approach might have enabled the matter to move through the system more quickly.

[18] With respect to the hopes of trial time in May 2015, Mr. Hawtin characterizes what happened as an example of complacency within the system as described in Jordan. It was clear at the time of the October 2014 pretrial that all parties were available in May 2015. The case management judge had contacted the trial co-ordinator to request that she look for the required trial time within that month. The parties returned to court in January 2015 with the expectation that the trial could proceed in May 2015 only to discover that the required trial time was not available in May and never had been. If the parties had been informed sooner that May was not going to work, they could have begun their search for an alternate trial date sooner, perhaps with better results. The fact that the parties had not been informed of the situation before January 2015 is symptomatic of a system in which complacency has taken root.

[19] Mr. Alton, on behalf of J.G., adopted the arguments made on behalf of S.M., to the extent that they applied to J.G. Mr. Alton acknowledged that a period of just over eight months was attributable to J.G. Under the Jordan framework, this would be categorized as defence delay and be subtracted from the total time. His concession is based on the adjournment of the January 2016 trial to accommodate J.G.'s counsel. Nevertheless, J.G. argues that the remaining time breaches his section 11(b) right. This is based on the time it took to get to the January 2016 trial date.

[20] He notes that, in October 2014 when the parties first sought to set a trial date, J.G.'s counsel, Mr. Brauti, was available both in May 2015 and November 2015. They believed that trial time would be secured in May 2015. They did not as a result keep the November time available. By the time they discovered, in January 2015, that May would not work, Mr. Brauti was no longer available in November 2015.

[21] Mr. Alton also criticizes the Crown's estimate of 10 to 15 days' trial time. He argues that, if the Crown had reduced the number of witnesses it was planning to call at an earlier stage, the estimated length of trial would have been shorter and it would have been easier to find an early date.

B. The Crown argument

[22] Mr. Temple on behalf of the Crown begins by characterizing this as a serious and complex case. Complex, at least, in so far as the investigation is concerned. The motor vehicle collision, in which the vehicle of S.M. struck that of Ms. Wisch and killed her, led to an intensive police investigation. Police went to every business along the route of the vehicles and seized video surveillance data. This had to be reviewed and analyzed. There was expert evidence. There were 47 witnesses in this case: 27 civilian witnesses and 20 police officers. While the Crown was not ultimately going to call that number of witnesses at a trial, there was a great deal of evidence that needed to be reviewed.

[23] While S.M. may have some reason to grumble, J.G. has no complaint. J.G. is the cause of the delay and S.M., in effect, conceded that they ought not to sever. The Crown notes the position taken by S.M. at the time of J.G.'s adjournment application in December 2015. He notes that S.M. did not bring an application to sever.

[24] This case is in the transitional period provided for in Jordan. Jordan calls for the Crown to take reasonable steps to expedite matters. It does not hold counsel to a standard of perfection. This is not a run-of-the-mill case. There are 47 witnesses, including experts. Even if that number is reduced considerably for the trial, it still exceeds the number of witnesses in a typical trial in the Youth Court in the Ontario Court of Justice. He points out the majority in Jordan has stated clearly that the intended effect of their decision is not to cause a repetition of the situation in the wake of the Askov case, in which tens of thousands of cases were stayed in Ontario alone. R. v. Askov, [1990] 2 S.C.R. 1199

[25] With respect to May 2015, Mr. Temple argues that what occurred was obviously the result of a misunderstanding or miscommunication that does not amount to complacency. Not every error or misstep should be equated to complacency.

[26] This case falls within the transition period and the parties placed reasonable reliance on the law as it existed and no one contemplated an 11(b) issue. As of June 2016, no s.11(b) applications had been filed by either defence counsel, as required by the Rules of the Ontario Court of Justice.

[27] The key factor at play here was the adjournment request in December 2015. This was entirely due to Mr. Brauti's unavailability. Mr. Hawtin could have opposed the adjournment but he did not. Furthermore, we cannot assume that the case management judge would have granted the adjournment if there had been an 11(b) concern raised at the time.

[28] Severance was not seen as a reasonable option by anyone at the time and, in the absence of severance, the Crown does not see what they could have done to remedy the situation. What was reasonable then should not be treated as unreasonable now. Mr. Temple distinguishes the case of Vassell on its facts, including the fact that, after much delay and severance of co-accused, the eventual trial took three days as opposed to the three weeks estimated here.

[29] Mr. Temple does not suggest that the approach taken by the Crown was perfect. However, he does assert that the Crown took all reasonable steps to move this matter along including working cooperatively with the defence to find mutually agreeable trial dates. This is a case within the transitional period contemplated by Jordan. It is at least moderately complex and there is no question that it involves serious charges. Under the Morin framework, the seriousness of the charges is a factor that weighs against finding a breach.

[30] Mr. Temple took issue with Mr. Alton's submission that the Crown failed to reduce their witness list early on, leading to an inflated trial time estimate which made it more difficult to find early trial dates. Mr. Temple indicated that 10 to 15 days was the estimate of how long the trial would take with a reduced witness list. Everyone knew through the judicial pretrial process that the number of witnesses would be substantially fewer than 47 and the estimate was made on that basis.

[31] I pause to note at this juncture that, on this final point, I accept the representations of Mr. Temple. It seems self-evident that the parties were operating on the premise of a reduced witness list; otherwise, the estimate of time for trial would have been much longer than 10-15 days.

C. Defence reply argument

[32] In summarizing the arguments, I have attempted to consolidate initial and reply argument by each of the parties, but one point in reply makes more sense if dealt with after reviewing the Crown's position. Mr. Hawtin and Mr. Alton addressed the issue of complexity. I combine their arguments on this point. They disputed the categorization of this case as complex, as that term is used by the majority in Jordan. Indeed, Jordan indicates that most murder prosecutions are not complex. Seriousness is not the same as complexity. Two accused, jointly charged, is the norm in a charge of street racing. This case is not factually or legally complex.

[33] While there may have been complexity at the investigative stage and substantial disclosure, this did not create any delay of note with respect to the court proceedings. The bulk of the disclosure was provided by June 29, 2014. With respect to any outstanding disclosure after that date, the parties, in a spirit of cooperation, did not let that hold up the proceedings.

V. Analysis and findings

A. Total time with defence delay subtracted

[34] The 11(b) analysis will be conducted applying the framework created by the majority in Jordan. The starting point is to calculate the total delay from the date of the charge to the actual or anticipated end of the trial. [Jordan, ¶ 60, ¶ 66] In this case, the information was sworn on May 13, 2014. The anticipated end date of the trial is October 5, 2016. A total delay of 28.75 months.

[35] The next step is to deduct any delay attributable to the defence. The defence should not be allowed to benefit from its own delay-causing conduct. [Jordan, ¶ 60, ¶ 66] Defence will be deemed to have directly caused a delay if the court and the Crown are ready to proceed, and the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. [Jordan, ¶ 64]

(1) Delay with respect to J.G.

[36] I will begin the analysis with J.G. Mr. Alton concedes that the delay from the January 2016 trial date, which had an anticipated end date of January 22, 2016, should be subtracted from the total delay vis-à-vis his client. This would leave 20.25 months of delay as against J.G.

[37] First of all, it is not entirely clear to me why the time all the way to January 22, 2016 should be counted against the "system" when J.G. was not in fact prepared to participate in his January 2016 trial. In effect, he is asking to have counted against the system a period during which he was ultimately not available.

[38] Secondly, I believe is preferable to stick to the Jordan framework in calculating the amount of defence delay. The majority in Jordan indicates that the defence will have caused the delay if the court and Crown are ready to proceed and the defence is not. This requires us to examine the circumstances that pertained when the trial date was set.

[39] The parties began looking for a trial date as of January 7, 2015, when they became aware that May 2015 was not available. Mr. Alton points out that, in October 2014, Mr. Brauti was available in November 2015. Unfortunately, by January 7, 2015, that month had been filled. If it had not been for the prospect of a trial in May 2015, they would have preserved the November dates and could have had the trial then.

[40] The best evidence with respect to the setting of dates is the collection of emails found at Tab 5 of J.G.'s Application Record. These are the communications between the trial coordinator and the parties. It appears that, as of January 2015, the court was able to offer dates in July 2015 and thereafter. Mr. Hawtin, on behalf of S.M., was available for six days in July, throughout the months of August, September, October, and November, and for nine days in December. The Crown was not available in July and August but was available any time after that. Mr. Brauti, on behalf of J.G., was not available any time in 2015. I find that the court, the Crown, and S.M. were all available for trial in September. But for Mr. Brauti's lack of availability, the matter could have proceeded in September 2015. The fact that, in October 2014, Mr. Brauti had been available in November 2015 does not change the fact that the court and the other parties were available before that date.

[41] If a trial date had been set for September 2015, the anticipated end date would have been in mid-September. In all of the circumstances, I find that defence delay attributable to J.G. begins at that point in time and extends to October 5, 2016. This is a period of 12.75 months. When we subtract this from the total delay, we are left with a delay of 16 months. This falls below the presumptive ceiling in Jordan – at least for adults.

(2) Delay with respect to S.M.

[42] It is apparent on the record that S.M. has always been ready and available to set a trial date in a timely way. Based on this finding and the above analysis, I do not find any of the delay is attributable to S.M.

[43] As noted already, I find that there was sufficient trial time for this case in September 2015 and that the Crown and S.M. would have been available. I agree with S.M. that further delay in this case was due to the fact that he was jointly charged with J.G. As Mr. Hawtin put it, when J.G. sought and obtained an adjournment in December 2015 of the pending January 2016 trial, S.M. was dragged along. There is no period to subtract from the total delay for S.M. The delay is 28.75 months and is presumptively unreasonable. While the period of delay for J.G. is under the 18-month period in Jordan, I will assume, for the purposes of this analysis, that the limit for young persons is under 16 months, and treat that delay as presumptively unreasonable as well. In such a circumstance, the burden falls upon the Crown to justify the delay.

B. Exceptional circumstances

[44] The Crown can justify the delay by showing that there are exceptional circumstances that explain the delay and which were outside the control of the Crown to prevent or mitigate. This may be an unforeseen discrete event that caused delay. The Crown can also seek to show that this is an exceptionally complex case in which the delay is a function of the nature of the case itself.

(1) Discrete event causing delay

[45] The Crown was prepared to proceed to trial in January 2016. The December 2015 adjournment application by J.G. was unforeseen by the Crown and outside its control. I accept that the application and subsequent adjournment constitute an exceptional circumstance. The occurrence that creates an exceptional circumstance does not have to be rare. The argument on behalf of S.M. is that, when faced with the adjournment motion by J.G., the Crown should have severed J.G. and S.M.'s charges and proceeded separately against S.M. in January 2016. In other words, when faced with this occurrence, the Crown did not take reasonable steps to mitigate the prejudice to S.M. An assessment of this issue requires an examination of the issue of severance.

(a) Possible mitigation of delay: severance

[46] No-one disputes that the joinder of S.M. and J.G. was a proper exercise of Crown discretion. The issue is whether or not the Crown ought to have severed the accused to allow S.M.'s matter to proceed sooner. The defence argument for S.M. is essentially that the Crown should have given up its right to try the accused jointly in order to mitigate the prejudice to S.M. due to the delay caused by his co-accused. S.M. relies on the Vassell case in support of this argument. He seems to suggest that Vassell signals a change in the law. Mr. Hawtin indicated, in explaining why S.M.'s s.11(b) motion was filed late, that he only considered the application after reading Vassell.

[47] There are strong policy reasons that favour joint trials. In R. v. Sarrazin, the Ontario Court of Appeal stated the following, at ¶ 59:

…[J]oint trials enhance the truth finding exercise and preclude the possibility of inconsistent verdicts; they spare all those concerned, and ultimately the community, the expense (financial and emotional), inconvenience to witnesses, and institutional stress associated with multiple trials of the same issues.

[48] In my view, the policy reasons favouring joinder of accused are even stronger when there are two co-principals charged with an offence. As the Crown pointed out, severance would mean two three-week trials rather than one. Each trial would occupy a judge, court staff, and a courtroom for the better part of a month. Witnesses would have to testify twice. There would be less available trial time for other cases in need of trial dates.

[49] In almost every case with multiple jointly-charged accused different defence counsel will have differing schedules. There will always be an accused who is available for trial earlier than his or her co-accused. This does not mean that it will be in the interests of justice to sever in all such cases. For the policy reasons expressed in Sarrazin, a certain amount of compromise has been tolerated in the scheduling process. The Supreme Court in Vassell acknowledges this, stating: "In many cases, delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial." [Vassell, ¶ 6]

[50] The pre-Vassell case law already recognized that delay by one accused may reach a point where severance will be necessary to protect the rights of a co-accused who is ready to proceed to trial. See for example, R. v. Whylie, [2006] O.J. No.1127 (C.A.) at ¶ 25; R. v. Charles, [2013] O.J. No. 74 (Sup. Ct.) at ¶¶ 39-40. While Vassell does not change the law in this area, it serves as a compelling reminder that, at a certain point, the public interest in pursuing a joint trial must give way to protect other rights.

[51] Mr. Hawtin argues that it is the principle in Vassell which is important and the facts are not relevant. Therefore, the Crown's attempt to distinguish Vassell on the facts is meaningless. However, Vassell contemplates that some degree of delay may have to be accepted in the context of prosecuting multiple accused. [Vassell, ¶ 6] Not every scheduling conflict between co-accused will trigger severance. Automatic resort to severance would proliferate multiple parallel prosecutions within the court system. This would tie up resources that could be used for other litigants. This would undermine the very aim of Jordan.

[52] Thus, there remains the issue of when the principle in Vassell should be applied. The facts of Vassell are therefore indeed relevant as an example of a situation where the Supreme Court says severance was necessary. Those facts are quite different from the facts in this case. In Vassell, it took three years for the accused to have a three-day trial. Prior to Mr. Vassell's trial, the Crown had shown a willingness to sever other co-accused. Mr. Vassell did not benefit from this even though it was something he had pursued in the interest of obtaining an early trial date. There was a Crown-caused adjournment of one trial because the Crown wished to call expert evidence and then, at the later rescheduled trial, did not call that evidence. These facts are quite different from the case at bar. Here, it cannot be said that the Crown caused the problem. The most that can be argued is that the Crown failed to mitigate the situation.

[53] In this context, it is worth revisiting what occurred when this case was adjourned in December 2015. While both the Crown and counsel for S.M. expressed their concerns over delay of the trial, both parties consented to the request of J.G. Counsel for S.M. did not bring a motion for severance. It was not even mentioned.

[54] I note that the parties agreed to the adjournment without first ascertaining when the trial could be re-listed. While S.M.'s counsel may not have known that the next trial date would be in the fall of 2016, he was in no position to assume that he would necessarily get something quicker. The reality is that, once the parties had consented to the adjournment, the January 2016 trial dates would have been vacated and made available to other litigants, particularly those in custody. Thus, once the adjournment was consented to, there was no realistic prospect that severance would have enabled S.M. to obtain an earlier trial date than the one that was set jointly with J.G.

[55] It seems to me that a common feature in most of the cases where the court later held that the Crown ought to have severed is that the issue of severance, at the very least, was on the table at a time when severance could have made a difference. Thus, for example a court that was being asked to retrospectively assess the Crown's conduct would have before it a record that included a motion to sever, the Crown's reasons for opposing that motion and a court's ruling on the motion.

[56] None of those features are present here. We have an adjournment motion that was granted on the consent of the parties, including S.M. We cannot presume that the result of the adjournment motion would necessarily have been the same if it had been opposed (or opposed in conjunction with an application to sever the accused).

[57] As noted earlier, the effect of the adjournment being granted was that the January 2016 trial dates would have been vacated and used for other matters. Once that occurred, severance would have done nothing to obtain a trial date for S.M. that was earlier than the one he ultimately obtained jointly with J.G.

[58] It seems to me that the Crown is retrospectively being taken to task for not pursuing an option that no-one else appears to have thought of at the time. In my respectful view, this is contrary to the analysis mandated by Jordan. While the parties are expected to be diligent, they are not to be held to a standard of perfection. In the circumstances, I do not fault the Crown for having failed to sever the accused in response to J.G.'s adjournment motion.

[59] I find that this discrete event constituted an exceptional circumstance as contemplated by Jordan and the Crown cannot reasonably have been expected to have foreseen it or mitigate it.

(b) Possible mitigation of delay: proceeding piecemeal

[60] Mr. Hawtin suggested that, in keeping with the proactive approach directed in Jordan, the Crown and the court could have accommodated the trial by setting a series of dates in which smaller blocks of time were sought. For example, three blocks of five days each that would necessarily have breaks or gaps in time between each instalment of trial time.

[61] While this might have been a possible way to get the trial on the rails quicker there is simply no evidence before the court as to whether or not such an approach would have resulted in a trial termination date that would have been significantly different from the one actually obtained.

[62] No-one suggested this at the time. While in the pre-Jordan world there was no onus on an accused or counsel to take proactive steps to get trials on expeditiously, I accept in this case that S.M. and his lawyer, Mr. Hawtin, did in fact desire to get this matter on quickly. It is with this in mind that I note that Mr. Hawtin, on behalf of his client, never suggested when trial dates were being set that they be set piecemeal rather than in a block of 10 to 15 days. This is not to assign blame or to be critical in any way for a failure on Mr. Hawtin's part to do so but this fact is relevant to the analysis I must make in light of the dicta in Jordan.

[63] In looking at cases within the transitional period, it is important to look at the conduct of counsel through the lens of what appeared to be reasonable or realistic at the time. No-one apparently considered breaking the trial up in this fashion. This suggests that this approach was not seen as a realistic option at the time. Furthermore, because it was not raised and considered at the time, we cannot assess the extent to which the parties would have been prepared to sacrifice the benefits of running a relatively uninterrupted trial. The majority in Jordan cautions that, while counsel are expected to be proactive, they are not to be held to a standard of perfection. I believe that we are in danger of holding the prosecution to such a standard if we expect Crown counsel to have considered and pursued a remedy that had not occurred to anyone else.

C. Exceptionally complex case

[64] The Crown argues that this is a particularly complex case. We have co-accused. It was a complex investigation that resulted in voluminous disclosure. There is expert evidence. There is a large number of witnesses. Even when the number of witnesses was cut back for trial purposes, the trial estimate is in the order of three weeks – much longer than the typical one- or two-day estimate for most trials in Youth Court. The Crown asserts that this case is both factually and legally complex.

[65] The majority in Jordan explained that the complexity of the case may justify delay where the nature of the evidence or of the issues would require an inordinate amount of preparation time or trial time. With respect to evidence and issues, the court states:

As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. [Jordan, ¶ 77]

[66] The court goes on to indicate that:

A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance. However, if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance. [Jordan, ¶ 78]

[67] While there was an intensive investigation that produced voluminous disclosure, the core disclosure had been provided at about the two and a half month mark. Once through the intake period, this is not a factor that justifies trial delay. The factors pointed to by the Crown suggest a case of moderate complexity but not of the magnitude contemplated as an exceptional circumstance. The case is not without a certain level of factual and legal complexity but this did not require an inordinate amount of preparation time such that the trial was delayed beyond what would otherwise be available. While a focused trial still required about three weeks of court time –which exceeds the usual amount required for a "garden variety" case – this does not persuade me that three weeks in these circumstances is an "inordinate" amount of trial time.

[68] I find that the present case is not sufficiently complex for complexity to qualify as an exceptional circumstance justifying delay.

D. Transitional cases

[69] Jordan directs us that, where the events in question occurred before the release of the Jordan decision, the situation must be examined in light of what would have seemed reasonable at the time.

[70] This case falls squarely within the transitional period contemplated by Jordan. The majority in Jordan stressed that the new framework must be applied flexibly and contextually to cases that pre-existed the release of the Jordan decision. The court cautioned that it was not their intention to create the situation that occurred in the wake of the Askov decision, in which thousands of cases were stayed for delay. Thus, parties are not to be held to a standard of behaviour that did not exist at the time when decisions were being made. Actions must be viewed through the lens of what would have appeared reasonable in the circumstances at the time in question.

[71] An example, in the present case, is the December 2015 adjournment request of J.G. which has already been discussed. The adjournment was not opposed. No-one raised s.11(b) concerns. No-one sought or suggested severance. The reasonableness of the conduct of counsel should be assessed based on their understanding of what was a reasonable approach at the time. Thus, viewed from the perspective of what seemed reasonable at the time and bearing in mind that counsel are not to be held to a standard of perfection, I found that the Crown had not failed to take available reasonable steps to avoid or mitigate the delay caused by the adjournment.

(1) Delay assessed in pre-Jordan context

[72] In order to assess what would have seemed reasonable in the pre-Jordan context, it is helpful to conduct an analysis of the delay from that perspective. Such an assessment is governed by the approach laid down by the Supreme Court in Morin, taking into account the direction of that court about cases in the transitional period set out in R. v. Williamson, 2016 SCC 28.

[73] It seems clear that counsel on this case did not see a live s.11(b) issue until recently. Nothing was mentioned at the final pretrial/status hearing. The explanation offered by counsel both for J.G. and S.M. for short service of their Charter materials was that they had not seen s.11(b) as a live issue in this case until counsel for J.G. had read Jordan and counsel for S.M. had read Vassell. This is some indication that this case was not seen as one that was in 11(b) territory prior to July 2016.

(a) Information sworn to first pre-trial

[74] Time to trial, under the pre-Jordan framework, would have been broken down into relevant periods and those periods characterized in various ways. Not all such periods would be counted as contributing to a period of unreasonable delay. The period from the swearing of the information on May 13, 2014 to the date on which the parties were ready to set a trial date would be counted as part of the inherent time requirements of the case. The parties were ready to set a trial date as of October 14, 2014, the date of the first pretrial. This is a period of about five months, which I see as part of the inherent time requirements of the case.

[75] Within that time-frame there is a period which could be described as intake time from May 13, 2014 to July 29, 2014. This was the time required for the Crown to provide the core disclosure to defence. Given the nature of the investigation, the number of witnesses interviewed, the need to seize and analyze video surveillance recordings and the use of expert opinion evidence, I find that the Crown was expeditious in getting disclosure ready.

(b) First pre-trial to January 7, 2015: the May 2015 target dates

[76] The next time period, from October 14, 2014 to January 7, 2015, while the parties waited to see if they could obtain trial time in May 2015, is somewhat unusual and I will review it in some detail.

[77] Mr. Hawtin, on behalf of S.M., argues that the May 2015 scenario was symptomatic of institutional complacency as decried in Jordan. The parties relied on the trial coordinator to find three weeks of trial time in May 2015. The parties were all holding this time. The complacency lies in the fact that no-one contacted the parties prior to January 7, 2015 to tell them that May 2015 was not going to work.

[78] I accept that the parties relied in good faith on dates in May 2015 being found. However, in determining what to make of the situation, I cannot help but look at what was said on the record by the case management judge on October 14, 2014. Justice Krelove stated:

And I understand that counsel have indicated that they're free basically in May and so I've asked the trial coordinator to start looking in May and she will be in touch with all three counsel to set aside those days. [Emphasis added.]

[79] The court asked the trial coordinator to "start looking" in May. This does not sound like a done deal. While the parties may have operated on the premise that they would get a call if the dates could not be found, there was nothing preventing any of them from getting in touch with the trial coordinator's office to confirm that the dates being sought had actually been secured. It would be as easy as a phone call or an email. This might be an advisable course of action, in particular, if one were about to fill the only remaining time one had in 2015. In my respectful opinion, the complacency argument cuts both ways.

[80] I find that there is no basis before me to characterize what occurred with respect to seeking trial dates in May 2015 as indicative of complacency on the part of the trial coordinator and hence, attributable to a culture of complacency within Courts Administration.

[81] What happened here appears to be an isolated incident. In other words, it is not representative of the way trial dates were typically obtained in this jurisdiction. In fact, what occurred subsequent to the discovery in January 2015 that there was insufficient time for this trial in May is more typical of the local practice at the time and currently. That is to say, the responsibility was placed upon the parties to attend upon or to contact the trial coordinator with a view to finding court time that was available to all the parties. This was done through email communication involving the parties and the trial coordinator. This was an easily available and efficient method for the court and the parties to work towards scheduling dates. It brings with it the benefit that scheduling issues can be worked on between court appearances. Matters are not frozen between court appearances.

[82] The time from October 14, 2014 to January 7, 2015 represents lost time, in the sense that the search for trial dates by the parties was held in abeyance during that period. The evidence before me does not indicate when in that time period it became clear that a block of three weeks could not be found in May 2015. I draw the inference that it was not obviously available in October 2014 or else trial dates would have been set at that time. This suggests, as is often the case, that the trial coordinator had to embark upon an exercise of juggling other matters and attempting to re-schedule judges to see if three weeks could be made available in this one particular month.

[83] This was not a typical approach to setting dates, where the parties would be sent to the trial coordinator to see what dates the court could offer that were also available to the parties. Here what appears to have happened was a well-intentioned effort to accommodate the limited availability of J.G.'s counsel. Thus, a date was found that worked for all counsel and the trial coordinator was asked to try to make that work. If the normal approach to setting trial dates had been followed in October 2014 – given what was available in early 2016 – there would have been trial dates available at least as early as July 2016. It is likely that, in October 2014, there were trial dates available before July 2016 but that by early 2016 those dates had been filled by other litigants appearing in set date courts between October 14, 2015 and January 7, 2016.

[84] I note that youth court matters draw on the same resources – judges, court rooms, court staff – as do adult criminal matters. As far as the allocation of trial time, it is my understanding that priority was at the time (and is currently) given to in-custody accused, then to out-of-custody youth, and then to out-of-custody adults.

[85] I have no evidence before me as to the state of the list in May 2015 and when it became apparent to the trial coordinator that May 2015 could not be made to work for this case. I also have no evidence as to when November 2015 became unavailable to J.G.'s counsel. I accept that it would have been desirable for the trial coordinator to have alerted the parties as soon as it was known that May 2015 was not going to work. It might also have been a good idea for J.G.'s counsel to find out the status of the May 2015 target dates before releasing November 2015. I take it that this did not happen because J.G.'s counsel was relying on dates in May 2015 being found. On the other side of the equation, while the trial coordinator had been instructed to look for dates in May 2015, I have no evidence to suggest that the trial coordinator knew that the parties were relying on those dates being found.

[86] While it is unfortunate that the parties waited two to three months hoping to confirm trial time that turned out to be unavailable, I would characterize what happened as the result of a miscommunication or a misunderstanding. What occurred, far from being a symptom of systemic complacency, as that concept has emerged in Jordan, was an atypical event. As already noted, subsequent steps to obtain trial dates were more representative of local practice.

[87] In assessing what to make of this period of time, I remind myself that this is not an exercise in assigning blame. It is clear that the first attempt to obtain a trial date misfired. In my respectful view, there is a shared responsibility as between the "system" and the litigants. This is bearing in mind that everyone was acting with the best of intentions. It all the circumstances, I would treat this period as neutral time. Thus, the 2.75 months from October 14, 2014 to January 7, 2015 is categorized as neutral.

(c) The period from January 7, 2015 to September 15, 2015

[88] After January 7, 2015, as already noted, the Crown, the court, and S.M. were all available for trial in September 2015. The court could offer time as early as July 2015. (The anticipated end date of such a trial would be July 15, 2015.) The Crown was not available until September 2015. (The anticipated end date of that trial would be September 15, 2015.) Thus, I have assessed this period as follows. January 7, 2015 to July 15, 2015 constitutes 6.25 months of systemic delay. The further period to September 15, 2015 constitutes two months of Crown delay.

(d) The period after September 15, 2015

[89] The period after September 15, 2015 is attributable to J.G. and, more specifically, to the limited availability of his counsel. This causes me, once again, to look at the case law dealing with jointly charged accused, this time in the s.11(b) context.

[90] The general rule that applies in such situations is that delay caused by the actions of a co-accused is considered to be neutral time and is not factored into the assessment of what constitutes a reasonable period of time: R. v. L.G., 2007 ONCA 654, [2007] O.J. No. 3611 (C.A.) at ¶¶ 62-63; R. v. Whylie, [2006] OJ. No. 1127 (C.A.) at ¶ 24; R v. Sapara, 2001 ABCA 59, [2001] A.J. No. 256 (C.A.) at ¶ 61, leave to appeal refused [2001] S.C.C.A. No. 237; R. v. Charles, [2013] O.J. No. 74 (Sup. Ct.) at ¶¶ 36-38; R. v. Tomlinson, [2008] O.J. No. 3524 (Sup. Ct.) at ¶ 41.

[91] In the circumstances, I find that the delay occasioned by J.G. constitutes neutral time under the pre-Jordan framework. More importantly, for the application of the Jordan framework, it causes me to draw the inference for this transitional case that the reasonable expectation of the parties at the time was that they had not reached a point where the delay caused by one accused had breached the s.11(b) rights of the other accused.

[92] Given the periods of time that were part of the inherent time requirements of the case or which constitute neutral time, we are left with 8.25 months of combined systemic and Crown delay. This falls outside of the 5 to 6 month guideline for youth matters set out by the Ontario Court of Appeal: R. v. L.B., 2014 ONCA 748 at ¶ 14; R. v. T.R. at ¶ 34.

[93] Unlike the hard ceiling created in Jordan, the timelines in the pre-Jordan framework are guidelines. While the courts have recognized that the s.11(b) analysis must take into account the fact that charges against young offenders are to be proceeded with promptly, "it is merely one of the factors to be balanced with others in the manner set out in R. v. Morin": R. v. D(S), [1992] S.C.R. 161 at p.162.

VI. Conclusion

[94] While this was not an exceptionally complex case as that concept is used in Jordan, I have found that it was at least moderately complex. The number of potential witnesses, the nature of the charges and the issues, and the expert evidence made the matter more complex than a typical trial in Youth Court. There is no doubt that a three-week trial was more difficult to accommodate than a shorter trial in a court that is better at scheduling matters measured in hours or days as opposed to weeks. The fact that it took about nine months to get a trial date after the January 2016 dates were vacated (although I have characterized it as neutral delay) is indicative of local limitations on institutional resources playing a role at that point. As noted in Jordan, when dealing with considerations in transitional cases, this local situation is something that would have informed the reasonable expectations of the parties at the time.

[95] S.M. and J.G. have been subject to fairly restrictive bail conditions while awaiting trial. I accept that each has suffered a degree of prejudice due to limitations on what they have been able to do and who they can associate with. While I do not wish to minimize the fact of the restrictions placed upon these young persons, I believe it falls short of what I would describe as significant prejudice for the purposes of this analysis.

[96] Although the length of institutional delay falls outside the Morin guidelines as adapted to Youth Court, it does not surpass those guidelines by an excessive length and, as noted above, this is just one factor in the assessment. The delay attributed to systemic and Crown delay is proportionately relatively small compared to the total delay. Under the pre-Jordan framework, I do not expect that these charges would have been stayed based on institutional delay of this length.

[97] The Morin analysis contemplated that the seriousness of the charges was a factor to be considered. These are extremely serious charges involving the death of one person and injury to another. The prejudice suffered by these young persons due to the delay in getting to trial is outweighed by society's very high interest in having these charges tried on the merits. I am mindful that, in applying the Morin analysis to transitional cases, charges that would otherwise be stayed cannot be saved solely because of the seriousness of those charges: R. v. Williamson at ¶ 34. While the seriousness of the charges is a factor, in this case it is but one consideration in the analytical matrix that applies pursuant to the Morin analysis.

[98] For all of the above reasons, I find that the Crown has discharged its onus to show firstly, that a significant portion of the delay was caused by a discrete event that could not reasonably have been avoided or mitigated by the Crown; and, secondly, that this case falls within the transitional exception provided for in Jordan and Williamson, such that the delay in this case is justified. While there clearly has been delay, I find that in law that it is not unreasonable delay. I find that the s.11(b) rights of the S.M. and J.G. have not been breached. The applications pursuant to sections 11(b) and 24(1) of the Charter are dismissed.

VII. Addendum

[99] The above reasons were drafted to convey the reasoning that led to my ruling of September 14, 2016. Thus, they were framed in terms of the anticipated end date of the trial, which was October 5, 2016. The reality is that, once the trial began, the writing of these reasons was put aside to deal with the trial proper. The evidence and submissions were all completed as of September 27, 2016. I put the matter over until October 5, 2016 with the hope that I could deliver my trial judgment on that date. I found this to be insufficient time in which to properly consider the case and render a judgment. I suggested a return date of October 31, 2016 for that purpose. Counsel for S.M. was not available on that date or on a number of other suggested dates. As a result, the matter was made returnable on November 21, 2016. Given this situation, I have reconsidered my reasons in light of a notional trial end date of October 31, 2016. In all of the circumstances, this additional period of 26 days does not cause me to change my conclusions with respect to s.11(b) of the Charter.

Released: November 21, 2016

"Justice Robert Gattrell, O.C.J."

[1] Where names of the accused persons were stated on the record, I have substituted initials.