Court File and Parties

Ontario Court of Justice

Date: February 8, 2017

Court File No.: Brampton 14-12007

Between:

Her Majesty the Queen

— and —

David McCready and Keith Rochon

Before: Justice Kathryn L. Hawke

Submissions heard: November 14, 2016

Stay entered: January 16, 2017

Reasons for Judgment released: February 8, 2017

Counsel

Tom Dietrich — counsel for the Federal Crown

Dano Sahulka — counsel for the defendant David McCready

Brian Crothers — counsel for the defendant Keith Rochon

HAWKE J.:

INTRODUCTION

[1] David McCready and Keith Rochon appeared on Information 14-012007. This Information was set for a Garofoli Application to be heard on January 16, 2017, and for trial on February 6, 7, 8, 9, 10 and 13, 2017. Each defendant was charged on this Information with offences concerning an offence date of March 28, 2014, however, there were no joint charges. Counts 1 & 2 concerned Mr. McCready and the remaining 7 counts i.e. 3-9 concerned Mr. Rochon.

[2] Mr. McCready's charges were:

• C.D.S.A. s.5(2) Possession for the Purpose Cocaine; and
• s.4(1) Possession Cocaine.

[3] Mr. Rochon's charges were:

• #3 - C.D.S.A. s. 5(2) Possession for the Purpose Cannabis (not exceeding 3 kg);
• #4 - s. 4(1) Possession Cannabis (exceeding 30 gr.);
• #5 - s.5(2) Possession for Purpose Cannabis resin (not exceeding 3 kg.);
• #6 - s.4(1) Possession of Cannabis resin (exceeding 1 gr);
• #7 - s.5(2) Possession for the Purpose Fentanyl;
• #8 - s.4(1) Possession of Fentanyl; and
• #9 - C.C.C. s. 354 (1)(a) Proceeds of Crime.

[4] Both defendants brought an Application seeking a remedy of a stay of these charges under s. 24(1) of the Charter for an alleged breach of his s. 11(b) Charter right to a trial within a reasonable time. All parties agreed that the delay in this case should be analyzed under the framework established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27. On January 16, 2017 the charges were stayed under s. 24(1) of the Charter as a result of a finding of an 11(b) breach. The reasons for this decision follow.

[5] This history of court appearances is divided so as to reflect appearances that are relevant to what happened between:

(a) Charge to first trial date;

(b) First trial date to the second trial date; and

(c) Second trial date to the third trial date.

A. Charge to First Trial Date

[6] Both Applicants were arrested during the execution of a search warrant at what is acknowledged to be Mr. Rochon's residence. Whether this was also a residence of Mr. McCready was a trial issue. In any event, they were both arrested at this residence on March 28, 2014 and they were each charged on the same date with the offences that I have outlined above. They were each released on a Promise to Appear.

[7] The Applicants' first court appearance, on two separate Informations was May 1, 2014 and each was adjourned until May 30, 2014, for the Applicants to retain counsel.

[8] On May 30, 2014, the Defendants appeared on two separate Informations. Mr. McCready did not yet have counsel and indicated he may retain counsel once he received disclosure. Mr. Crothers appeared for Mr. Rochon and filed a Designation of Counsel. Both parties received a disclosure brief and Mr. Crothers indicated that he was requesting the Information to Obtain (ITO). The case was adjourned to June 27, 2014.

[9] On June 27, 2014, a student on behalf of Mr. Crothers appeared on the Designation for Mr. Rochon. Mr. McCready appeared in person. Further disclosure was provided. This did not include the ITO. The Rochon Information was adjourned to July 27, 2014. The McCready Information was adjourned to July 11, 2014 for him to retain counsel.

[10] On July 11, 2014, Mr. McCready appeared. I do not believe I have a transcript for that date but I can tell from his Information that he was remanded to August 8, 2014.

[11] On July 27, 2014, a student on behalf of Mr. Crothers appeared on the Designation for Mr. Rochon and he made enquiries about the ITO. The Crown provided a copy of the Report to Justice. There was a plan to request a Judicial Pre-trial (JPT) date and the case was adjourned to the same date as Mr. McCready, August 8, 2014, for this purpose.

[12] On August 8, 2014, a student on behalf of Mr. Crothers appeared on the Designation for Mr. Rochon and Mr. McCready appeared on his own. Both parties received disclosure of photographs. McCready was given the Report to a Justice previously received by Rochon. Mr. McCready indicated that he had lost his job and would be applying to Legal Aid. Both cases were adjourned for a JPT on Sept. 10, 2014.

[13] On September 10, 2014, Mr. Sahulka was retained and appeared for Mr. McCready. He also filed a Designation. Mr. Sahulka indicated that he as well was seeking a copy of the ITO and that he would make the request in writing too. Mr. Canario appeared for Mr. Crothers. A JPT was held and it was adjourned to be continued on September 26, 2014.

[14] On September 26, 2014, Mr. Sahulka appeared for both Applicants. This appearance was on the two separate Informations involved in all of the above appearances plus a joint Information. The joint information was Information 14 - 012007 referred to in the Introduction above. This Information was sworn on the 25th of September, 2014. The ITO continued to be unavailable for disclosure and the JPT was adjourned to October 29, 2014.

[15] On October 29, 2014 Mr. Sahulka appeared for both Applicants. He indicated that Mr. Crothers could not appear because of an unexpected family medical reason. The ITO disclosure was still outstanding. There is an exchange that Prosecution relies on in its 11(b) argument that reads as follows (emphasis has been added):

THE COURT: Okay. And with respect to, I guess, the issue of 11(b), the I.T.O. is still outstanding, so that's a Crown issue, but at the same time, your colleague, due to no fault of his own, obviously, isn't able to attend. So between now and November the 7th, it seems to be sort of neutral in terms of the 11(b) calculus, is that fair?

MR. SAHULKA: That's fair, Your Honour.

[16] Thereafter the JPT was adjourned to November 7, 2014.

[17] On November 7, 2014, shortly before their court appearance, the parties received the ITO. Mr. Sahulka appeared for both Applicants and he indicated that Mr. Crothers would like to review the ITO before conducting the JPT. I note that at this time, absent a specific request, cases involving federal prosecutors were scheduled before court on Wednesdays between 9:30 and 10:00 a.m. and Fridays between 9:00 and 10:00 a.m. Returning to the proceedings of this date, Mr. Sahulka noted that Mr. Crothers needed to review the ITO with his client in order to see how his client wanted to proceed. Then the transcript reads:

Mr. SAHULKA: … My client essentially will be following along. If Mr. Crothers wants a prelim we'll have a prelim. If he wants to go straight upstairs we're going to go straight upstairs.

THE COURT: Okay.

MR. SAHULKA: Mr. Crothers is next available for a JPT December 3rd. That would be at 9:30 in courtroom 309.

THE COURT: That's fine.

MR. SAHULKA: He required the ITO for the JPT, which I understand. I imagine there's probably JPT dates available between now and December 3rd, it is a lengthy way away, so I imagine for 11(b) it's kind of a saw-off between now and then.

Mr. JOHNSTON: I agree with you wholly.

[18] The case was adjourned to December 3, 2014 for the JPT to continue.

[19] On December 3, 2014, both counsel attended, the JPT was completed and all parties accepted the first dates offered by the Trial Coordinator. These were trial dates of September 8, 9, 10 and 11, 2015. Everyone was aware of a potential 11(b) issue. All counsel, including the prosecutor, said they had earlier dates. Justice Clark noted the dates were "right on the cusp of what might be considered as triggering an 11(b) on the face of things, so there is not a lot of wiggle room here. Anyway, the record will speak for itself in due course, if necessary." Mr. Crothers indicated he would be seeking instructions about bringing an 11(b) Application. He emphasized that he had been retained before the first court appearance at which time he had requested the ITO and he followed up on this request with correspondence on June 19, 2014. The prosecutor, Mr. Johnston, said the case was "rather complex" as it involved multiple charges, and an informant's information was involved which procedurally involved two Crowns being involved in the vetting of the ITO. The case was adjourned for the confirmation of trial dates on July 17, 2015. (Note: I think Mr. Crothers misspoke when he referred to the first appearance and instead he should have referred to the second appearance.)

B. First Trial Date to the Second Trial Date

[20] At the confirmation date on July 17, 2015, the prosecutor had an adjournment application in his file but as things were discussed in court it became apparent that the documents were unsigned, and had not been served or filed. The case was adjourned to July 24, 2015.

[21] On July 24, 2015 the Prosecution requested an adjournment of the trial. The evidence on the Application was the Affidavit of Catherine Scollay. That Affidavit stated:

(1) I am employed as a Legal Assistant in the Brampton Regional Office of the Public Prosecution Service of Canada and, as such, have knowledge of the matters to which I depose.

(2) The above matter is currently scheduled for a Trial on from September 8-11, 2015 in the Ontario Court of Justice, 7755 Hurontario Street, Brampton, Ontario.

(3) I have been informed that Cst. Harloff is on medical leave and will not be able to attend court until January 2016.

(4) I have been informed by Crown Counsel, Cindy Afonso that the Crown is proposing to start the Trial in September and have an additional date in January 2016 to accommodate Cst. Harloff.

(5) Cst. Harloff is a required witness for the Crown, as she is the Exhibits officer.

[22] Defence counsel did not raise any particular argument against the adjournment but indicated that: they were ready for the September trial; they were not consenting to the adjournment; and they were not waiving 11(b) rights. The Prosecution indicated that defence counsel had attended with the trial coordinator to ask for a continuation day in February and had been informed that the better course would be to reschedule the trial. The "Verification of Trial Date Provided by the Trial Coordinator" form indicates that April 12-15, 2016 was offered but defence was not available then or thereafter until June 1st. Then June 6-9, 2016 was offered and accepted by all parties. In court Defence counsel indicated both defence counsel had dates in the months preceding these dates but Mr. Crothers, due to a project case, was not available for the last three weeks of April and the month of May. The trial dates of June 6-9, inclusive, were set. The case was then adjourned to April 13, 2016 for a second stage JPT.

C. Second Trial Date to the Third Trial Date

[23] On April 13, 2016 the case was adjourned to April 15, 2016.

[24] On April 15, 2016 a second stage JPT was held and the time estimate was changed to one day for a Garofoli Application on January 16, 2017 and a six day trial on February 6, 7, 8, 9, 10 and 13, 2017. The judge in court was Justice Kastner and she was not the judge who conducted the second stage JPT. The parties indicated that the time between the two trial dates was to be considered neutral. Her Honour was clearly concerned about her own lack of information while setting the date. The discussion about this ended in the following way:

THE COURT: I understand that but when things like that are placed on the record, it should be before the presiding judge. But in any event, I'm prepared to approve the dates on the understanding that 11(b) is not at issue between the first week of June of this year until the dates that are scheduled in February.

MR. CROTHERS: Fair enough.

THE COURT: All right.

MR. JOHNSTON: That's correct, Your Honour. My friend's comments are accurate. Thank you very much.

ANALYSIS

[25] R. v. Jordan established a new framework for analysis of reasonableness of delay under s.11(b) of the Charter. This framework includes a presumptive "ceiling" for delay in provincial courts of 18 months. A summary of the framework is provided at paragraph 105 of Jordan. Leaving aside for the moment additional considerations for cases that were in the system as of July 8, 2016 (the release date of Jordan), there are three parts to this framework: the calculation of delay that counts toward the presumptive ceiling; an onus on the Crown regarding cases exceeding the presumptive ceiling; and an onus on the defence for cases below the presumptive ceiling.

[26] The Supreme Court's summary in paragraph 105 of each of these three parts of the framework is outlined below. I have also added bullets, to each part, that contain details drawn from other paragraphs of the decision. In the bullets I have only included points that are relevant in light of the history of the proceedings in this case.

(1) Presumptive Ceiling

"There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling." (Jordan, para. 105)

• The overall time to be counted is from the charge to the actual or anticipated end of trial (Jordan, paras. 47 & 60)

• The time periods for defence delay is subtracted from the overall time in order to establish whether the case is above or below the relevant ceiling (Jordan, paras. 48 & 60)

• Defence delay includes defence-caused and defence-waived delay (Jordan, para. 49)

• Delay waived by the defence:

  • Does not mean the right is waived but rather it speaks to inclusion of specific time periods in the overall assessment of reasonableness (Jordan, para. 61)
  • Includes a waiver that can be explicit or implicit but it must be clear and unequivocal (Jordan, para. 61)
  • Involves an accused who must have full knowledge of his rights and the effect of the waiver on those rights (Jordan, para. 61)

• What constitutes defence-caused delay:

  • Includes where the accused's acts directly cause delay (Jordan, para. 63)
  • Includes accused's acts that are shown to be a deliberate and calculated tactic employed to delay the trial (this includes frivolous applications and requests) (Jordan, para. 63)
  • Includes when defence is unavailable to proceed when Crown and Court are available (Jordan, para. 64)
  • Does not include when the Crown and the Court are not available and the defence is also not available (Jordan, para. 64)
  • Includes other defence action as determined by the court (Jordan, para. 64)
  • Does not include legitimate defence actions taken to respond to the charge(s) e.g. preparation time, non-frivolous applications and requests (this is accounted for in the ceiling) (Jordan, para. 65)

• The ceiling takes into account inherent time requirements and the increased complexity of criminal cases (Jordan, para. 53) so conversely these things do not change the ceiling

• Once the ceiling is breached, there is a presumption of prejudice and this presumption is not rebuttable. (Jordan, para. 54) ("The absence of actual prejudice cannot convert an unreasonable delay into a reasonable one." (Jordan, para. 54))

(2) Crown's Burden Once Ceiling is Exceeded

"Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to the event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is reasonable." (Jordan, para. 105)

• The Crown must establish the presence of exceptional circumstances otherwise the delay is unreasonable and a stay will follow. (Jordan, para. 47)

• Exceptional circumstances is the only basis for Crown justifying delay beyond ceiling. (Jordan, para. 81)

• Exceptional circumstances that cannot reasonably be remedied is when "Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise." (Jordan, para. 69)

• There is no further hurdle of being rare or entirely uncommon. (Jordan, para. 69)

• The list of what is exceptional is not closed and will depend upon the trial judge's assessment (Jordan, para. 71)

• In general, however, exceptional circumstances fall into two categories (Jordan, para. 71):

  • Discrete events (Jordan, para. 71)
    • For example medical or family emergency (re accused, important witnesses, counsel or trial judge) generally qualify (Jordan, para. 72)
    • The time for discrete exceptional events is subtracted in whole or in part. In part may result from a discount where Crown or court did not mitigate the delay (Jordan, para. 75)
  • Particularly complex cases (Jordan, para. 71)

• It is insufficient, once the ceiling is breached, for the Crown to point to past difficulty (Jordan, para. 70)

• Crown must show it took "reasonable available steps to avoid and address the problem before the delay exceeded the ceiling." (Jordan, para. 70) Examples include:

  • Prompt resort to case management processes to seek the court's assistance (Jordan, para. 70)
  • Seek to streamline and coordinate evidence, issues, pre-trial application with assistance from defence (Jordan, para. 70)
  • Other appropriate procedural means (Jordan, para. 70)

• It is not necessary that these steps be successful but rather that they were reasonable steps in an attempt to avoid the delay (Jordan, para. 70)

• Crown cannot rely on other things including seriousness or gravity of offence, chronic institutional delay, absence of prejudice (Jordan, para. 81)

• The period of delay caused by discrete exceptional circumstances is subtracted from the total delay with the caveat that "…any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted." (Jordan, para. 75)

(3) Defence's Burden Below the Presumptive Ceiling

"Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have." (Jordan, para. 105) Absent both the application must fail. (Jordan, para. 82)

(No bullets are included here as this issue ultimately did not arise in this case)

Is this case above or below the presumptive ceiling?

[27] As outlined above answering this question involves calculating the total delay and subtracting defence delay.

[28] The Total Delay was from March 28, 2014 to February 13, 2017 and it totals 34 months, plus 2 weeks and 2 days. (34 ½ months).

[29] The next issue was whether there was any defence delay to subtract from the Total.

[30] The Prosecution submitted that April 28, 2014 to September 10, 2014 is a period of defence delay because Mr. McCready, who was arrested on March 28, 2014, did not retain counsel until September 9, 2014, in spite of saying during that time period that he would retain counsel. The Prosecution submitted that no meaningful pre-trial discussions or setting of dates could occur until counsel was retained and further there was never a severance request.

[31] I rejected this argument and found there was no defence-caused delay in this time period, for the following reasons:

(a) The ITO was not disclosed to the parties until Nov. 7, 2014. The primary reason that this case was stalled until Nov. 7, 2014 was the non-disclosure of the ITO. This non-disclosure is what prevented the next logical step in the case, that being a meaningful JPT;

(b) The fact that it was only Mr. Rochon requesting the ITO during the period cited by the Prosecution changes nothing, as it appears that it was always the intent of the Prosecution to jointly charge these defendants even though it was not until September 25, (i.e. 15 days after this alleged defence delay), that the Prosecution officially had an Information sworn joining the two defendants;

(c) This situation is analogous to the situation noted in Jordan where if the Crown is not available for a period of time it is not defence delay, even if defence counsel is also unavailable (Jordan, para. 64.) Here the Crown was causing delay and even if one of the defendants was also having problems going forward it does not constitute defence delay; and

(d) If the Prosecution had been ready to proceed, a JPT could have been held with Mr. McCready being unrepresented and then a trial date could also have been set on a with or without counsel basis.

[32] The Prosecution also submitted that from October 29, 2014 to November 7, 2014 was defence delay to be deducted. It was submitted that counsel conceded this time period by agreeing with the presiding judge that this time period "would be neutral in terms of the 11(b) calculus."

[33] I rejected this argument and found there was no defence-caused or defence-waived delay for the following reasons:

(a) This was the day that Mr. Crothers was absent due to unexpected illness in his family. The ITO still had not been disclosed. Given this, even if Mr. Crothers had appeared the adjournment would still have occurred due to the Prosecution's inaction. Therefore, this was not defence-caused delay.

(b) The presiding judge's statement was not as categorical as suggested by the Prosecution and included the words "guess" and "sort of" (See para. 15 above);

(c) With all due respect, even under the former framework I did not understand Her Honour's suggestion of neutral time in light of the ITO disclosure issue, and I was not prepared to make a finding that any part of this delay fell at the feet of the defence; and

(d) I was also not convinced otherwise by the fact that Mr. Sahulka agreed it was neutral time. Given all of the circumstances there was no logical way to convert what was called 'neutral time' into 'defence-caused delay'. Further, I do not view co-counsel's comments about neutral time as meeting the necessary qualifications for 'defence-waived delay' by Mr. Rochon.

[34] The Prosecution also submitted that from November 7, 2014 to December 3, 2014 should be deducted as defence delay either by conduct or waiver. November 7th was the day the ITO was received and the matter went over for a JPT. Mr. Crothers in his Factum acknowledges that at the time it was agreed, by co-counsel who appeared for both defendants, to be neutral delay.

[35] I note that what was called neutral delay, including a neutral intake period, is not part of the Jordan framework and is not deducted from the total time. The ceiling has been set at a level to accommodate these times when they are reasonable. The question now is whether this time period amounted to defence delay either by conduct or waiver.

[36] I found this time period was not defence delay for the following reasons:

(a) The reality was, as is the case in virtually all search warrant cases, that the case particularly as against Rochon, relied heavily, if not totally, upon the search warrant for its success. It follows that there could be no meaningful discussion with Mr. Rochon about resolution or trial, without counsel providing an opinion to the Defendant about the viability of the warrant. This opinion and subsequent instructions would be a necessary first step in determining the election, whether there would be a Garofoli application etc. This adjournment was for necessary preparation before there could be a meaningful JPT and time estimate.

(b) Defence counsel diligently sought the ITO from the second appearance onward and had been dutifully attending court for many appearances. The ITO was not disclosed until that very morning of November 7 and even if Mr. Crothers had been in court on behalf of his client he could not be expected to take the next step without spending time reviewing the ITO and discussing the case, as now fully disclosed, with his client.

(c) The next court day, after months of waiting, was for the continuation of the JPT and counsel's personal attendance was required. Undoubtedly Mr. Crothers would have had earlier dates if the ITO disclosure had not taken months.

(d) We have no actual information on the record about whether on November 7, 2014 the Court and the Crown had earlier dates than December 3, 2014 available for a JPT. (see para. 17 above)

(e) There was no attempt made by the Federal Prosecutor to request an earlier JPT outside of the normal limited times on Wednesdays and Fridays.

(f) Mr. Sahulka's musings on the record do not meet what is necessary for a defence-waiver by Mr. Rochon. (See: para. 17 above.)

[37] Lastly, the Prosecution pointed to the time period from June 9, 2016 (i.e. the last day set for the 2nd trial date) to February 13, 2017 (i.e. the last day set for the 3rd trial date.) This delay resulted from a change in the time estimate made during a second stage JPT, held in advance of the second trial date. The Prosecution submitted that this time period can be considered both an exceptional circumstance and a time period waived by the defence.

[38] At this point in the Jordan analysis I needed to consider whether this was defence-waived delay. I concluded that it was for the following reasons.

(a) Although the words used on the record refer once again to 'neutral' time, on this occasion there were circumstances that support an inference that there was defence-waived delay.

(b) These circumstances included: this appearance followed directly on the heels of a JPT where clearly the implications of changing the time estimate were considered; the words spoken in court imply that the parties have agreed, during the JPT, to the exclusion of this time period from the overall assessment of reasonableness; the final exchange with Justice Kastner quoted above made this more explicit (see: para. 24 above); and counsel made it clear that the change in time estimate had nothing to do with an already planned 11(b) argument for delay up to this point.

[39] This defence-waived time period of June 9, 2016 to February 13, 2017, was 8 months and 5 days. When this was subtracted from 34 months, plus 2 weeks, and 2 days the result was 26 months, plus 1 week, and 4 days which was clearly above the ceiling of 18 months making the delay presumptively unreasonable.

Has the Crown rebutted the presumption of unreasonableness?

[40] On this question the Prosecution pointed to the unavailability of an officer, who was a necessary witness and on medical leave, and submitted that this was an exceptional circumstance that should result in time being subtracted from the total delay. The Prosecution made the submission in its Response materials that this would result in a deduction of approximately 3.5 months. Presumably, this would be the time between September 11, 2015 (the last day of the first set of trial dates) to January 1, 2016 (the end of the medical leave). I do not know why the Prosecution did not include the rest of the time involved in this adjournment. I imagine this was an oversight by the Prosecution. I did not explore this problem further in light of my conclusion below that the Prosecution did not provide sufficient evidence to prove on a balance of probabilities that this was an exceptional circumstance as described in Jordan (see: para. 26 (2) above). I concluded that an exceptional circumstance was not proven on a balance of probabilities for the following reasons:

(a) I know from the Affidavit, relied upon on the Adjournment Application, that the Affiant had hearsay evidence that the officer was on medical leave that was expected to continue for the next 5 plus months. Beyond that there is a dearth of evidence. So, for example:

(i) I do not know who the information was received from. There is a distinct possibility it was from another officer doing a computer check for the confirmation date.

(ii) I do not know when the medical issue arose. Given that it appears that the leave was in place on the first confirmation date then the medical issue must have arisen at some earlier point in time and therefore it was not a medical emergency. Given that this witness was a police officer this raises a further question of whether the police should have informed the Prosecution sooner so an Adjournment Application could have been brought sooner.

(iii) I do not know the nature of the medical issue. I do not expect overly personal details to be part of the court record but there is a clear difference in most, not all, cases between being medically fit to be a uniform officer on a twelve hour shift and being medically fit to come to court to testify about a completed investigation. Typically, with both civilians and police officers, the Court is in receipt of information, directly or indirectly, from a medical practitioner addressing the witness' ability to attend court.

(b) The Prosecution made no attempt to bring additional evidence on this issue as part of its Response to the 11(b) Application.

(c) While it is certainly true that anything from, a medical emergency at one end to a lengthy serious illness at the other end, could potentially qualify as an exceptional circumstance as described in Jordan, the simple fact that a witness is on medical leave does not provide sufficient proof:

(i) Of the witness being unable to testify during the time period;

(ii) Of the problem being unforeseen (it could have started with elective surgery for all I know).

(d) The Prosecution has not shown that it took any steps to address the problem when it arose. For example it did not:

(i) Contact the witness to see whether there were accommodations that could be marshaled so that the witness could attend court;

(ii) Contact the Trial Coordinator after the adjournment was granted about prioritizing this case over others and thereby fitting it into the schedule.

(e) It is not important whether any of these steps would have been successful but rather it is important that no steps were taken.

[41] There is an option of deducting some or all of the time occasioned by an exceptional circumstance but given I found that the Prosecution did not meet its onus in proving the suggested exceptional circumstance there is no need to engage in this second exercise.

[42] Given all of the above the delay remained at 26 months, plus 1 week, and 4 days which is clearly above the ceiling of 18 months making the delay presumptively unreasonable.

Does the fact that this is a "transitional" case change the analysis?

[43] This was clearly a transitional case as it was commenced on March 28, 2014 and Jordan was released on July 8, 2016.

[44] The Prosecution in its Response: cited passages from Jordan about transitional cases; provided a Morin analysis (R. v. Morin, [1992] 1 S.C.R. 771); and submitted that neither the "Jordan" nor the "Morin" analysis support a stay of the charges for unreasonable delay.

[45] I disagree with parts of the Morin analysis presented by the Prosecution for the same reasons I disagreed with the Prosecution in the Jordan analysis. For example, each analysis begins with attributing the first 5-1/2 months of delay to Mr. McCready for not having counsel. More importantly, I think the analysis of transitional cases is more nuanced than comparing the results of each framework.

[46] The approach required for transitional cases under the new framework was summarized in R. v. Coulter, 2016 ONCA 704 at para. 56:

Where the Remaining Delay exceeds the presumptive ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to July 8, 2016, the date that Jordan was released. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case took 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 to the fact that the parties' behaviour cannot be judged strictly against a standard of which they had no notice. Considerations of prejudice and the seriousness of the offence can inform whether the parties' reliance on the previous state of the law was reasonable. (Jordan, para. 96).

[47] The Prosecution submitted for consideration on this front that in its view this is a moderately complex case under the old framework due to "two search warrants and separate accused." (Response, para. 16)

[48] I do not understand the "separate accused" part of the complexity argument as it was the Prosecution who decided to join two Defendants with separate charges on the same Information. Also the separate Informations were never withdrawn.

[49] I was not provided with any details about the search warrants nor the ITOs (note: only one ITO was mentioned in the transcripts). Therefore, I was unable to make any assessment of potential complexity caused by them and in turn the reasonableness of any reliance on this potential consideration. Also, there was a striking similarity between, the problem of getting disclosure of the ITO in this case, and a similar problem in R. v. Stanley, 2016 ONCJ 730. Stanley was decided by Justice P.A. Schreck in Brampton and it involved the same Public Prosecution Service of Canada office. In Stanley, the defendant was arrested and charged on August 18, 2014 and it took 8 months to disclose the ITO. These dates overlap with the case at bar where the defendants were arrested and charged on March 28, 2014 and the ITO was disclosed on November 7, 2014, 7¼ months later. Justice Schreck in Stanley at para. 35 states:

Second, I am far from persuaded that the Crown reasonably relied on the law as it previously existed. To the contrary, in my view the Crown's conduct in this case exemplified the "culture of complacency" described in Jordan. Although the investigation was complete by the time the applicants were arrested, initial disclosure was not made for approximately four months. The ITO, which was clearly of critical importance to the defence, was not disclosed until eight months after the charges were laid. The Crown states that this was because the ITO had to be vetted to protect the identify of a confidential informant and the Crown's office was short-staffed. I accept that such vetting is necessary and takes time. However, the ITO in this case was only nine pages long and only two small portions on the second page need to be excised. I find it difficult to accept that the Crown's office was so short-staffed that it took eight months to vet nine pages. Even if it was, the Crown's failure to allocate sufficient resources to the prosecution of serious criminal offences cannot justify delay that is otherwise unreasonable. Even after the ITO was provided, it took another five months to provide the surveillance disclosure, which consisted of police notes that were created prior to the applicants' arrest. This can only be described as what Watt J.A. referred to in R. v. Manesseri, 2016 ONCA 703, [2016] O.J. No. 5004 (C.A.) at para. 359 as "a leisurely approach to disclosure."

[50] The distinguishing feature between Stanley and the case at bar is that in Stanley it also took a further five months to disclose the surveillance materials. I do not think this makes His Honour's comments any less applicable to the case at bar. Search issues are almost always the primary issue in drug cases. A subset of those cases involve search warrants. If there is competent defence counsel involved it can be anticipated, regardless of which direction a case is headed, that counsel will want to review the ITO. Getting ITOs to counsel is part of your 'bread and butter' work if you are in the business of prosecuting drug cases. Lack of attention to this work does not, without further appropriate details, show complexity, rather it leads to the inferences drawn by Justice Schreck and the complexity argument fails.

[51] The Prosecution also submits the seriousness of the offence should be considered in the analysis at this stage. There is no denying that a couple of the counts are serious. If, however, the seriousness of the offence informed the Prosecution's view pre-Jordan, why did this not also inform its actions? As the history of the matter discloses, this case had warning signs written all over it but no steps were taken to prioritize it over other Federal prosecutions. In line with this, no assistance was sought from the Court to reduce the delay when the first and second trial dates were set. In these circumstances, the seriousness of some of the charges has not been shown to be a justification for delay rooted in reasonable reliance in the law as it was known at the time.

[52] The Prosecution also submits that a lack of prejudice should be considered. Given that I found that suggested reliance on other features of the previous law did not amount to exceptional circumstances, I did not think that any reliance on lack of prejudice, on its own, could be characterized as an exceptional circumstance particularly given the length of the delay.

[53] In summary, I did not find that any transitional exceptional circumstances. Given this the delay remained at 26 months, plus 1 week, and 4 days, which is clearly above the ceiling of 18 months, thereby making the delay presumptively unreasonable.

CONCLUSION

[54] For the foregoing reasons, the Application was granted, and the proceedings were stayed. This included the Information that was set for trial and the additional separate Informations for each Defendant.

Released: February 8, 2017

Justice Kathryn L. Hawke