Court File and Parties

Date: July 27, 2017

Brampton Court File No.: 14-13491

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kadeem Payne

Before: Justice Paul F. Monahan

Heard on: June 26, 2017

Reasons for Decision on the s.11(b) Charter Application

Released on: July 27, 2017

Counsel:

Ms. A. Berg for the Crown

Ms. T. Dobson-Hamilton for the defendant Kadeem Payne

MONAHAN J.:

INTRODUCTION

[1] The defendant Mr. Kadeem Payne brings this application to stay this proceeding on the basis that his right under s.11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") to be tried within a reasonable time has been violated. I heard the application on June 26, 2017. I have determined that a stay should issue by reason of a violation of the defendant's s.11(b) rights. These are my reasons for that decision.

[2] By way of a broad overview, Mr. Payne was arrested on September 8, 2014. He was charged with assault with a weapon and assault causing bodily harm. The case involves allegations that Mr. Payne stabbed the alleged victim in the leg and hand with a knife. At the time of these alleged offences, Mr. Payne was 20 years old.

[3] The first trial date was not until February 8, 2016 when trial dates of July 13, 14 and 15, 2016 were agreed upon and set. Part of the delay in setting the trial date resulted from the fact that the Crown's file was "missing" for four court consecutive attendances from August 31, 2015 until January 12, 2016. The first trial date of July 13, 2016 did not proceed as scheduled. The defence brought an application to adjourn the trial on July 13, 2016 due to the illness of defence counsel. The material seeking the adjournment expressly waived s.11(b) going forward (see para. 8 of the affidavit of Silvia Kissova filed on the application for the adjournment). The adjournment was granted. After a number of subsequent attendances reflecting attempts by the defence to get a mental health assessment done for the purposes of a potential resolution of the case; and a change in defence counsel, a new trial date of September 26 and 27, 2017 was set and remains scheduled.

[4] The Crown and the defence agree on much of how the time which has passed since this case first started should be treated under the R. v. Jordan, 2016 SCC 27 framework, and, to the extent it is required, the prior "Morin" framework derived from R. v. Morin. For example, the Crown and the defence agree that the time between the first trial date (July 13-15, 2016) until the second trial date (September 26 and 27, 2017) should be treated as part defence delay and part discrete exceptional circumstance (relating to the illness of defence counsel) under the Jordan framework and should not form part of the institutional or Crown delay under the Morin framework. Nonetheless, there are disputed areas between the Crown and the defence and I will review and determine those disputed areas in addition to considering how the parties jointly submit certain other time periods should be treated. Much of the disagreement between the parties comes in the application of the concept of "defence delay" under Jordan.

THE LEGAL FRAMEWORK

[5] This application falls to be determined under the new framework laid down by the Supreme Court of Canada in Jordan. The test under Jordan may be summarized as follows:

1. A trial Court hearing an s.11(b) application should calculate the total delay from the charge to the anticipated end of the trial (Jordan at para. 47);

2. From the total delay the Court should deduct defence delay (Jordan para. 66) and the delay associated with discrete exceptional circumstances (Jordan at paras. 75 and 82);

3. Defence delay has two components. The first is delay waived by the defence. The other is delay caused solely by defence conduct including circumstances where the defence uses a deliberate tactic to delay the trial. A further example of defence delay will occur where the Court and the Crown are ready to proceed and the defence is not (Jordan paras. 60-64);

4. If the delay is above the presumptive ceiling then it is presumptively unreasonable. The Crown can rebut this presumption by showing that the delay is reasonable on the basis of exceptional circumstances (Jordan para. 68). This is the only basis upon which the Crown can justify a delay above the ceiling and avoid a stay. The absence of prejudice in cases above the ceiling is irrelevant (Jordan para. 81). The meaning of exceptional circumstances is explained by the Supreme Court at paras. 69 to 81;

5. In transitional cases that exceed the presumptive ceiling, the Crown may seek to justify the time the case has taken "based on the parties' reasonable reliance on the law as it previously existed" (Jordan para. 96). This is the "transitional exceptional circumstance"; and

6. Below the presumptive ceiling a stay may still issue if the defence can establish two things: (1) that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. In the absence of these two factors, the stay application will fail (Jordan para. 82). Stays below the ceiling should be granted only in clear cases. In setting the ceiling, the Supreme Court factored in tolerance for reasonable institutional delay (Jordan para. 83).

[6] In R. v. Cody, 2017 SCC 31, the Supreme Court of Canada further explained the s.11(b) test set out in Jordan. Of particular interest for the case at bar is what the Supreme Court had to say in Cody about two aspects of the Jordan test: (i) defence delay; and (ii) the transitional exceptional circumstance. I will briefly summarize the direction from the Supreme Court in Jordan and Cody on these two areas.

Defence Delay

[7] In Cody, the Supreme Court of Canada made the point that defence delay, apart from waiver, involves delay that "(1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges" (Cody at para. 31). It includes deliberate tactics aimed at delay; frivolous applications and requests; and where the Court and the Crown are ready to proceed but the defence is not. The categories of defence delay are not closed. The circumstances surrounding the alleged delay must be considered in each case. Defence actions or inactions which show indifference to delay or inefficiency may amount to defence delay (see Cody at paras. 32-33). "Illegitimate conduct" is by no means limited to conduct which would amount to professional misconduct.

Transitional Exceptional Circumstance

[8] As indicated above, where charges were brought prior to the release of Jordan, the Crown may rely on the transitional exceptional circumstance "if it can show that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed" (see Cody at paragraph 68 quoting in part from Jordan at para 96).

[9] The Supreme Court in Cody said that judges should be mindful of what portion of the proceedings took place prior to the release of Jordan (see Cody at para 71). The issue of prejudice and the seriousness of the offence were factors under Morin and for cases in the system these factors can inform the question of whether the delay was unreasonable (Cody para. 68). In Cody, the charges were serious but this was overcome from a defence standpoint by the trial judge's findings of real and substantial prejudice. The Court noted that where the balancing under Morin of the seriousness of the offence and the prejudice established would have weighed in favour a stay under the prior Morin framework, "we expect that the Crown will rarely, if ever, be successful in justifying the delay pursuant to the transitional exceptional circumstance under Jordan" (Cody para. 74).

[10] Finally, I note that the Supreme Court in Cody found a net delay under the Jordan framework of 36.5 months which was in excess of the 30 month presumptive ceiling for Superior Court matters under Jordan. The Supreme Court also upheld the trial judge's stay based on a consideration that under the Morin framework the institutional and Crown delay in that case was 19 months, and was therefore in excess of the 16 to 18 month guideline under Morin for Superior Court matters.

APPLICATION OF THE JORDAN FRAMEWORK TO THE CASE AT BAR

[11] The Crown and the defence agree that the overall delay in this case runs from September 8, 2014 to September 26, 2017 and constitutes 1113 days. As indicated above, the defence agrees that the time after July 13, 2016 to the new date set for trial for September 26, 2017 (462 days) has been waived by the defence and a part of it treated as discrete exceptional circumstance attributable to the defence (the illness of defence counsel). In any case it is agreed that it is to be treated as defence delay arising out of the illness of defence counsel on the trial date set for July 13, 2016. This leads to a delay of 673 days from September 8, 2014 to July 13, 2016. What has not yet been agreed upon is all of the further deductions from the 673 days. There are seven time periods that require consideration in order to determine where this case fits under the Jordan analysis. The first six time periods are as follows: December 4, 2014 to January 8, 2015; February 5, 2015 to February 19, 2015; February 19, 2015 to March 12, 2015; May 25, 2015 to June 25, 2015; June 25 to July 9, 2015; and July 9, 2015 to August 31, 2015. The seventh time period which must be considered is August 31, 2015 to January 12, 2016 timeframe.

December 4, 2014 to January 8, 2015 (35 days)

[12] Both the Crown and the defence agree at the hearing of the s.11(b) application that the time spent waiting for legal aid to determine if a person will receive a legal aid certificate will not constitute defence delay and that such time will go towards the Jordan presumptive ceiling. This accords with Justice Le May's decision in R. v. Isaacs, 2016 ONSC 6214 at paras. 88-90 where Justice Le May dealt with a slightly different point namely the time taken to have a Rowbotham application determined. Justice Le May found that unless the Rowbotham application is without merit, the time spent between when it is brought and when it is adjudicated would not amount to defence delay and would generally apply towards the presumptive ceiling laid down in Jordan. In my view, the same logic applies to a bona fide legal aid application and the time it takes to have it determined. As I say, both the Crown and the defence agreed with this proposition on the s.11(b) application.

[13] It also follows in my view that if an accused person delays in the making of a legal aid application then such delay (until the application) is made can amount to defence delay. Both Crown and defence agreed with this point on the application before me. This point also follows from Justice Le May's decision in Isaacs at para. 90.

[14] In this case, the first indication we have on the record that a legal aid application had been made was on January 8, 2015. The Crown submits, and the defence agrees, that the legal aid application should have been made no later than December 4, 2014 and that the delay from December 4, 2014 to January 8, 2015 namely 35 days amounts to defence delay. I accept and agree with this proposition. Accordingly, 35 days will need to be deducted from the overall delay under the Jordan analysis.

February 5 to February 19, 2015 (14 days)

[15] The Crown submits that this time amounts to defence delay as co-counsel for a co-defendant (a relative of Mr. Payne was also initially charged but those charges were ultimately resolved by way of diversion at a later date) needed more time and Mr. Payne had not yet fully retained counsel as his legal aid application had yet to be determined. In my view, this period of time should not count as defence delay against Mr. Payne. It is clear from the February 5, 2015 attendance transcript that the legal aid process for Mr. Payne was not yet complete. The record does not disclose the favourable completion of the legal aid process until February 19, 2015. As of February 5, 2015, Mr. Payne was waiting for legal aid to get back to him so this time was part of the appropriate steps being taken by the defence to retain counsel and Mr. Payne was waiting for the "institution", namely legal aid, to get back to him. Moreover, there was no suggestion on the record on February 5, 2015 that the Crown was pushing the matter forward. I recognize that, generally speaking, the delay associated with retaining defence counsel may be defence delay but that was not circumstance here. In my view, the 14 days which elapsed during this time period with Mr. Payne waiting to hear from legal aid were not defence delay and go towards the Jordan presumptive ceiling.

February 15 to March 12, 2015 (21 days); May 25 to June 25, 2015 (31 days); and June 25 to July 9, 2015 (14 days)

[16] I will deal with these three time periods together as the position with respect to each of them is similar. The Crown takes the position that the disclosure in this case was substantially complete by no later than December 4, 2017 and that each time the defence asked for an adjournment on each of February 19, May 25 and June 25, 2015, the resulting adjournment fell under the second branch of defence delay namely defence delay caused "solely or directly" by the defence and should therefore be deducted under the Jordan calculus.

[17] In my view, none of the delay arising out of the February 19, May 25 or June 25 attendances can be characterized as defence delay. I say this, broadly speaking, for two reasons.

[18] First, I am not in agreement with the Crown that disclosure was substantially complete by December 4, 2014. There is no doubt that a significant amount of disclosure had been provided by that time. However, I note that at the time of the events now in issue (February 19, May 25 and June 25), the Crown never took the position that disclosure was substantially complete so that a trial date or JPT date could be set. The Crown consented (or did not oppose) each of the adjournments sought on February 19, May 25 and June 25 and did not suggest that disclosure was complete or that a trial date could be set until July 9, 2015.

[19] Further, I note that the affidavit filed by the Crown on the s.11(b) application makes it clear that the information to obtain (the "ITO") and other disclosure had not been disclosed as of December 4, 2014. It is unclear precisely when the ITO was provided but it appears that it was not provided until a significant period of time after December 4, 2014. In my view, the lack of clarity as to when disclosure of the ITO was made works against the Crown on the s.11(b) application as it is the Crown submitting that disclosure was substantially complete as of December 4, 2014 but the Crown's affidavit materials on the s.11(b) application make it clear that the ITO was not disclosed as of that time.

[20] As my colleague Justice Band observed in R. v. Tran, [2016] O.J. 4516 at para 23, the failure to disclose the ITO can affect the defence's ability to select the mode of trial (in this case I note that the Crown did not even elect to proceed summarily until June 25, 2015) and it can affect the making of reasonable trial time estimates as it impacts upon whether certain pretrial motions may or may not be necessary. Accordingly, the first reason I reject the Crown's submission that the February 19, May 25 and June 25 adjournments all amount to defence delay is that I am not satisfied that the Crown has established the assertion which is central to this argument namely that disclosure was substantially complete by those times. It is instructive to look at what positions were taken at the time rather than now trying to reconstruct what was occurring at the time. At the time of these three attendances, the Crown never took the position that disclosure was complete and in my view, there was some significant disclosure, including the ITO, that was not made until some period of time after December 4, 2014.

[21] The second reason I say that the February 19, May 25 and June 25 attendances did not lead to defence delay adjournments is that the adjournments were not caused "solely or directly" by the defence. In each case, the Crown consented to these adjournments at the time without a word about defence delay or the need to set a JPT or trial date. The concept of defence delay was a factor under the Morin framework (which applied at the time of these events) so there is nothing new in Jordan with the proposition that one had to determine whether a given adjournment was caused by defence delay or some other reason. The Crown was fully aware at the time of these events that if it wanted to characterize these offences as amounting to defence delay, it might have a difficult time doing so if it simply sat idly by without saying anything. The May 25, 2015 attendance is a good example of what was occurring in this case at the time of these three adjournments. On May 25, 2015, a JPT was held. Defence counsel attended in Court afterwards and stated that they were waiting for some disclosure and sought to put the matter over to June 25, 2015. The assigned Crown counsel provided a note to the Crown counsel speaking to the matter in Court which specifically consented to the matter going over to June 25, 2015. This attendance supports my first point that there was still significant outstanding disclosure at this time and, moreover, it makes the Crown jointly responsible with the defence for the adjournment.

[22] In summary, the February 19, May 25 and June 25, 2015 attendances were all routine adjournments. The Crown asserts that they were defence delay but on the record on the s.11(b) application they all appear to be routine and entirely unremarkable adjournments. These attendances cannot be characterized as defence delay. In particular, the delay cannot be said to be caused "solely or directly" by the defence. Fairly viewed, the resulting delays were caused by both the Crown and the defence and in my view the resulting time lost is not defence delay and goes towards the Jordan presumptive ceiling.

July 9, 2015 to January 12, 2016

[23] The foregoing periods deal with the time periods where there were disputes between the Crown and defence on the s.11(b) application. Before I consider the calculation of delay under Jordan and under Morin, it is important that I review the July 9, 2015 to January 12, 2016 time period as, in my view, what happened during this time is important for the s.11(b) analysis.

[24] On July 9, 2015, the defence sought an adjournment to August 31, 2015 due to what it said was outstanding disclosure and the fact the defence counsel was occupied with a murder trial in Hamilton. The Crown responded that the outstanding disclosure was only two officer's notes and that a trial date could be set. In my view, a trial date could have been set at this time. This reflects the position taken by the Crown at the time and defence counsel agreed with this position on the s.11(b) application. Accordingly, the 53 days from July 9 to August 31, 2015 are defence delay and come off the overall delay calculation under Jordan.

[25] On the s.11(b) application the Crown and the defence also agreed that the 134 days from August 31, 2015 to January 12, 2016 amounted to Crown delay and should go towards the Jordan presumptive ceiling. The parties further agreed that this same 134 days would also constitute Crown delay under the former Morin analysis. I accept and agree with both of these propositions. In particular, on each of August 31, 2015, September 28, 2015, October 26, 2015 and December 8, 2015, Crown counsel and defence counsel (or an agent for defence counsel) attended Court. On each occasion, defence counsel indicated that they were wanting to set a trial date. The intention to set a trial date was not expressly stated on the December 8, 2015 attendance but based on what was said on the other three attendances noted where the intention to set a trial date was expressly stated, I take this point to be implicit with respect to the December 8 attendance is well. On each occasion, the Crown stated that the Crown brief was missing and, as a result, trial dates could not be set. The point here is that on four consecutive Court attendances over a more than four month period, the defence sought to set a trial date and the Crown could not do so because the Crown could not find its own file.

[26] On the s.11(b) application the Crown submitted that the defence did not suggest that they concerned about delay on any of the four attendances where the Crown could not find its file. I disagree. As I have just stated, the defence attended on each of these occasions wanting to move the matter ahead by setting a trial date. The defence was ready to proceed and said on the record that they wanted to set a trial date but each time they were told they could not do so because the Crown could not find its own file.

[27] Ultimately, a further pretrial date was set on January 12, 2016 for February 8, 2016. Thereafter, on February 8, 2016, a trial date of July 13 to 15, 2016 was set. As previously indicated, the original trial date of July 13, 2016 did not proceed due to illness of defence counsel and an express defence s.11(b) waiver. The application for the trial adjournment was launched on July 12, 2016 and was returnable July 13, 2016 at which time the adjournment was granted.

The Calculation of Delay under Jordan and Morin

[28] In order to calculate the delay under the Jordan framework, one must start with the overall 1113 days to the second trial date (September 8, 2014 to September 26, 2017). One must deduct from the 1113 days, the 462 days from July 13, 2016 to September 26, 2017 as defence waiver and part exceptional circumstance attributable to the defence. One must also deduct the 35 days from December 4, 2014 to January 8, 2015 when the defendant delayed in applying for legal aid. In addition, one must deduct the 53 days from July 9, 2015 to August 31, 2015 when substantial disclosure had been made and the Crown was pushing to get this matter to trial and the defence was seeking further time. As I have already indicated, both the Crown and the defence on the s.11(b) application agree that both of these time periods amount to defence delay. The result under Jordan is a net delay of 585 days which is approximately 19.2 months (using 30.4 days for the average number of days in a month). This is above the ceiling under Jordan of 18 months for provincial court matters and is therefore presumptively unreasonable.

[29] The Crown submits that virtually all of the delay in this case occurred when the s.11(b) framework was governed by Morin, not Jordan. This is true given that the trial in this case was scheduled to start on July 13, 2016 and Jordan was handed down on July 8, 2016. Accordingly, the Crown seeks to rely on the "transitional exceptional circumstance" whereby the Crown must satisfy the Court that the time taken is justified based on the parties' reliance on the previous state of the law under Morin. I have already outlined the law on this point above.

[30] As mentioned above, the Supreme Court in Cody found a net delay under Jordan of 36.5 months which was in excess of the 30 month presumptive ceiling for Superior Court matters under Jordan. The Supreme Court also upheld the trial judge's stay based on a consideration that under the Morin framework the delay was 19 months, and was therefore in excess of the 16 to 18 month guideline under Morin framework for Superior Court matters.

[31] In the recent Ontario Court of Appeal decision in R. v. Pyrek, 2017 ONCA 476, the Ontario Court of Appeal considered a case, like Cody, where the trial was heard and determined before Jordan was handed down but the appeal was heard post-Jordan. In Pyrek, the Court calculated the net delay under Jordan as 24.5 months which the Court said did not "vastly exceed" the ceiling under Jordan (see Pyrek at para 32). The Court of Appeal in Pyrek also stated that the institutional and Crown delay of 11.5 months in that case was "only slightly above the guideline" under Morin (see Pyrek at para. 31). I note that of the 11.5 months of delay in Pyrek under Morin, 2.5 months of it was Crown delay caused by the late delivery of an expert's report by the Crown which led to an adjournment.

[32] Turning to the application of the Morin framework to the case at bar, the parties essentially agreed as to what the institutional and Crown delay was under Morin. The Crown delay was 134 days from August 31, 2015 to January 12, 2016 when the Crown could not find its file and nothing could be done; 74 days of institutional delay from March 12, 2015 to May 25, 2015 when the parties were waiting for a judicial pretrial; 27 days of institutional delay from January 12, 2016 to February 8, 2016 when the parties were waiting for a second judicial pretrial; and institutional delay of 156 days from February 8, 2016 to July 13, 2016 when the parties were waiting for the trial to start. The total is 391 days of Crown and institutional delay.

[33] I note that in its factum on the s.11(b) application, the Crown took the position that when Mr. Payne was waiting for his legal aid to be approved between January 8, 2015 and February 5, 2015, this would also constitute institutional delay under Morin. If this were the case, it would work against the Crown in the s.11(b) analysis. In my view, the time waiting for the legal aid certificate during this period would be neutral time under the Morin analysis and did not work against the Crown under that framework (see R. v. Boateng, 2015 ONCA 857 at paras 14 to 33).

[34] Under Morin, while it was not always the case, the Court could deduct from the institutional and Crown delay time needed for trial preparation (see R. v. Lahiry, 2011 ONSC 6780). In this case, not knowing the anticipated trial motions and other issues that might complicate the trial, I would deduct 30 days for trial preparation. Accordingly, the total Crown and institutional delay under Morin would have been 361 days (391 days less 30 days preparation). This is about one year or 12 months.

ANALYSIS

The State of the Law in Brampton Pre-Jordan

[35] I have found that this case exceeds the Jordan presumptive ceiling of 18 months as the overall delay less deductions is 19.2 months. According, it is for the Crown to satisfy the Court that the transitional exceptional circumstance applies. The Crown must satisfy the Court "that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed" (Jordan para. 96).

[36] The law pre-Jordan was the Morin framework. Under Morin, the Court had to undertake a balancing analysis wherein the Court considered whether the delay was unreasonable, having regard to the reasons for the delay, the interests of the accused, including any actual or inferred prejudice suffered, and society's interest in having the matter tried on the merits. Before staying the charges, the Court had to be satisfied that the interests of the accused and society in a prompt trial outweighed the interests of society in bringing the accused to trial (see R. v. Ignagni, 2013 ONSC 5030 at para. 5). Society's interest in having a case heard on the merits would involve a consideration of, among other things, the seriousness of the charges.

[37] The Morin framework set out guidelines for institutional and Crown delay of 8 to 10 months. How was Morin being applied pre-Jordan in Brampton? To answer that question, I note that for a straightforward case in Peel, the 8 to 10 month Morin guidelines had been revised downwards to 8 to 9 months (see R. v. Rego at para. 4). I note further that in the Ontario Court of Justice in Brampton prior to Jordan, stays were often issued under the Morin framework where the institutional and Crown delay was in the range of 10 to 13 months and the overall delay was under or above 18 months. The number of stays granted in these circumstances are too numerous to mention and in some cases are unreported. By way of example only from the reported cases, I note that stays were granted under s.11(b) in the following Brampton cases prior to Jordan: R. v. Barnes, [2003] O.J. 3217 (overall delay of 16 months and institutional delay of 13 months); R. v. Kielo, 2015 ONCJ 72 (overall delay of 14 months and institutional delay of 10.5 months); R v. Trocki, 2014 ONCJ 693 (overall delay of 13 months and institutional delay of 10 months); R. v. Neave, [2014] O.J. 6023 (overall delay of 17 months and 12 months institutional and Crown delay); R. v. Cai, [2014] O.J. 6586 (14 months delay overall and 12 months institutional delay); R. v. Lalani (2014), 62 M.V.R.(6th)159 (22 months overall delay and 12.5 months institutional and Crown delay); R. v. Tobin (2013), 281 C.R.R. (2d) 210 (overall delay of 17 months and 11.5 months of institutional and Crown delay); and R. v. Ramon, [2011] O.J. 6644 (overall delay of almost 13 months and institutional delay of 10 months and 19 days). I note as well that the Ontario Court of Appeal upheld a s.11(b) stay granted in Brampton where there was 14 months overall delay and 12 months institutional delay: see R. v. Rego, supra. I do not say that stays were always granted where the institutional delay and Crown delay was 10 to 13 months. In some cases they were not granted: see for example R. v. Apolinario (2007), 59 M.V.R. (5th) 241 (17 months overall delay and 11.3 months institutional delay); R. v. Purewal (2014), 313 C.R.R. (2d) 128 (17 months overall delay and 11.5 months institutional delay); R. v. Lof, [2004] O.J. No. 4963 affirmed 28 M.V.R. (5th) 150 (19 months overall delay and 9.5 months institutional and Crown delay); and R. v. Zieba, [2014] O.J. 5557 (overall delay of 17 months and institutional and Crown delay of 11.5 months). Where the institutional and Crown delay was in the range of 10 to 13 months, the question of a stay would often turn on the issue of prejudice and the other Morin balancing factors including the seriousness of the charge.

[38] I make the foregoing observations in support of the point that in Brampton there was little tolerance for delay pre-Jordan. This was the provincial court setting in which the Crown, defence counsel and defendants before the Court and all other justice participants were operating immediately prior to the release of Jordan. This was the state of the law that all justice participants relied on pre-Jordan. In transitional cases where Morin provided the operative s.11(b) framework, this state of affairs must be taken account in applying the Jordan framework. Indeed, I take the direction from the Supreme Court in Jordan and Cody to be that the previous state of the law pre-Jordan is an important consideration in transitional cases.

Prejudice in the Case at Bar

[39] I turn to the question of prejudice in the case at bar which remains a relevant inquiry in transitional cases. The defendant Mr. Payne filed an affidavit on the s.11(b) application. He was not cross-examined on it. In it Mr. Payne alleges prejudice which may be summarized as follows:

(i) He notes that his bail terms included a curfew that he had to be in his home from 9 PM to 6 AM every day. He says that he had a job from January to March 2016 but that he lost it when his employer changed his shift to have him work nights and he could not do so due to his curfew. He also alleges ongoing impact from the charges on his employment prospects; and

(ii) He alleges general anxiety associated with the charges in the delay in having them determined.

[40] As concerns the bail and the lost job, it appears that the Crown submits that his bail could have been changed and was in fact changed on consent in June 2016. While it is true that his bail was ultimately changed, it must be the case that the Crown sought the curfew term on his bail in the first place. There is no evidence in the affidavit filed by the defendant that he tried to change the bail condition in March 2016 to avoid the job loss. However, in my view, it is unchallenged evidence that he lost his job due to the bail conditions imposed. I note that while it is true that Mr. Payne ultimately had his bail conditions changed in June 2016, it was not something that could simply be changed at Mr. Payne's option. Mr. Payne would have to discuss the matter with his lawyer and likely provide some documentation as to the reason for the requested change and then get the assigned Crown to consider it and agree to it and then get it before Court. If the Crown would not agree to it, he would have to initiate further court proceedings. We don't know when the defendant first initiated the change to his bail condition that he ultimately obtained in June 2016. He may or may not have been able to get the bail changed in March 2016 and avoid the job loss. The fact remains that there is uncontested evidence on this application that he lost his job due to a bail condition that was sought by the Crown. In my view, it amounts to proof of some prejudice from the delay in this case.

[41] As for the general anxiety point, in my view a fair assessment of that evidence is that some of the anxiety is associated with the charges themselves (as opposed to delay) and some of it is associated with the delay in having the charges heard. Further, it must follow that some of the anxiety comes from the delay which arose out of defence counsel's illness and which cannot be blamed on the Crown or the institution. Nevertheless, I consider that Mr. Payne has established some prejudice associated with anxiety and the delay attributable to the Crown and the institution. In particular, in my view it is unanswerable that there was real prejudice associated with the defendant who attended four times to set a trial date (August 31, 2015, September 28, 2015, October 26, 2015 and December 8, 2015) and four times he was told that he could not set a date because the Crown could not find its own file.

[42] Taking all of the foregoing into account, and by way of summary on the question of prejudice, in my view the defendant in this case has established a moderate degree of prejudice associated with the delay.

Discussion

[43] As I have already indicated, under the transitional exceptional circumstance the Crown must satisfy the Court "that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed". I have concluded that they have not done so in this case and I will explain why. It was well established under the former Morin analysis that delay caused by the Crown weighed more heavily against the Crown under the s.11(b) analysis (see R. v. Yun (2005), 21 M.V.R. (5th) 283 (S.C.J.) at para 42 and R. v. McNeilly, [2005] O.J. No. 1438 (S.C.J.)). This is because Crown delay, unlike institutional delay, can be avoided if the Crown simply fulfils its responsibilities.

[44] I recognize that the charges in this case are quite serious. They involve allegations of assault with a weapon and assault causing bodily harm. On the "seriousness continuum" of cases heard in the Ontario Court of Justice, I would place these charges somewhere in the middle on this continuum but slightly towards the higher end. I consider that cases like major drug trafficking, child sexual assault, sexual assault and driving offences causing death to be at the most serious end of that continuum and more serious than the case at bar. The seriousness of the charges in this case must be considered in light of the prejudice to Mr. Payne and the reasons for the delay in this case.

[45] In my view, the Crown delay in this case was particularly serious. These reasons are not intended to criticize any person in particular and the criticism of any one person would be unfair. Crown files sometimes go missing. These things happen. They happen when the Crown, the defence and the Court carry a heavy load, as they do in Brampton, a busy Court jurisdiction. Having said that, losing a Crown file for more than four months and having four Court attendances during the same period of time which in turn prevents the setting of a trial date is totally unacceptable. I note that in Cody, there was an error in an agreed statement of facts which ultimately led to some Crown delay. The Supreme Court in that case acknowledged that errors will happen and a standard of perfection is not expected of the Crown. Nevertheless, the Supreme Court in Cody said that the agreed statement of facts error should have been resolved in short order, "perhaps even in a single day" (see Cody at para. 60). In my view, the same observation can be made in this case as concerns the missing or lost Crown file. Immediate and sustained efforts should have been made to find that file at the first indication that it had gone missing and it should have been available for the next Court attendance on September 28, 2015.

[46] Moreover, in my view, the type of Crown delay in the case at bar was more serious than the type of Crown delay concerning the agreed statement of facts in Cody. It was also more serious than the Crown delay in Pyrek which involved the late delivery of an expert's report leading to an adjournment. The error in the case at bar was not a single discrete error that led to a period of delay like in Cody or Pyrek. In my view, it is fair to characterize the error in this case as a repeated and continuing error for 134 days. As a practical matter, the Crown delay had a serious impact on the timing of the trial. The trial date should have be set for well in advance of the July 13, 2016 (when defence counsel ended up being sick) that was first selected in February 2016. A much earlier trial date would have been set if the Crown had located its missing file after the problem first arose on August 31, 2015. Of the 12 months of institutional and Crown delay in this case under the Morin framework, more than one third of it came about because the Crown could not find its own file. This Court cannot simply say that the charges are serious and therefore there should be a trial on the merits. If the case was so important, more attention should have been paid to it by the Crown. This was the approach the Supreme Court took in R. v. Williamson, 2016 SCC 28 at paras. 26-29, the companion case to Jordan, where the Court upheld a stay in a serious sexual assault involving a victim who was a minor (see also Cody at para. 70).

[47] This was a relatively straightforward case and the Court simply cannot countenance the Crown and the institutional delay in this case. Considering all of the circumstances, including the Crown and institutional delay, the prejudice to Mr. Payne, the seriousness of the charges and the interests of justice, it is my view that a stay would have issued in this case under the former Morin framework and should issue under the current Jordan framework. As the Supreme Court said in Cody, where the balancing under Morin of the seriousness of the offence and the prejudice established would have weighed in favour a stay under the prior Morin framework, "we expect that the Crown will rarely, if ever, be successful in justifying the delay pursuant to the transitional exceptional circumstance under Jordan" (Cody para. 74). That is the circumstance in the case at bar.

[48] Before completing these reasons, I wish to note two further points that arose in the course of argument on the s.11(b) application. The defence scheduled a s.11(b) application for May 25, 2016. The defendant then abandoned that application without stating why. The Crown on the s.11(b) application before me fairly stated that nothing could be made of the abandonment of the first s.11(b) application. I agree with this observation and make two further points. First, the abandonment of the first s.11(b) cannot be taken as an acknowledgement by the defendant that the delay to that point was acceptable. Second, the original s.11(b) application was abandoned when the defendant was represented by previous counsel and in my view it was an error to have abandoned that application. Nevertheless, that abandonment does not preclude a successful result on the s.11(b) application before me.

[49] The other point of note is that the defendant has spent a considerable period of time between the first trial date of July 13, 2016 and the second trial date set for September 26, 2017 examining the possibility of resolution and having a mental health assessment done for the purpose of potential resolution. In my view, this approach does not preclude the Court granting a stay on the s.11(b) application. The defendant's actions post July 2016 show nothing more than that the defence was considering a possible resolution of the case. It does not mean that the defendant was content with the pace of litigation or that his s.11(b) rights have not been violated. I am satisfied that the defendant was not content with the pace of litigation in this case. The defendant retained new counsel sometime in the last six months and it was that new counsel which advanced the s.11(b) application heard by me. They were right to do so given the history of this matter.

CONCLUSION

[50] In conclusion, for the reasons set out above, a stay of this action will issue for the violation of Mr. Payne's s.11(b) Charter rights.

[51] In closing, I am obliged to both Crown and defence counsel who worked cooperatively on the s.11(b) application to narrow the issues and to assist the Court. I note as well that neither counsel had carriage of this case during the time of the main delays in this case.

Released: July 27, 2017

Justice Paul F. Monahan