Court Information

Ontario Court of Justice

Date: November 14, 2017

Ontario Court of Justice – Old City Hall

Parties

Between:

Her Majesty the Queen

— AND —

Rossana Lim & Shannon Lim

Judicial Officer and Counsel

Before: Justice S.R. Shamai

Heard on: September 18, 20, 2017

Application for Stay of Proceedings under S. 24(1) of Charter – Relief for Breach of Section 11(b)

Released: November 14, 2017

Counsel:

• Renna Weinberg, counsel for the Crown
• Daniel Moore, counsel for the accused Rossana Lim
• Peter Danson, counsel for the accused Shannon Lim

INTRODUCTION

[1] Rossana Lim and her daughter Shannon Lim are charged with three counts of fraud over. Specifically, the allegations are: that each accused by fraudulent means defrauded the public of monies of a sum exceeding $5000, an offence pursuant to Section 380(1), that each attempted to commit defraud the public of money of a sum exceeding $5000, contrary to Section 463, and that the two conspired to defraud the public of monies of a sum exceeding $5000, all contrary to the Criminal Code of Canada. Upon arrest on July 3, 2014, they faced a 61 count information, sworn July 4, 2014. In this first information, the allegations against the two Lim's and three others, the charges were in the nature of identity theft, forgery, and using or causing the use of forged documents. Nine months later, a 131 count information was sworn. These were allegations of similar criminal conduct, against a larger pool of complainants, and with a different group of co-accused.

[2] The 131 count information was sworn April 14, 2015. There have been other co-accused in the prosecution, but of them, four entered guilty pleas, and charges were withdrawn against one. The present information was sworn December 12, 2016. It is, as indicated above, in terms of fraud, attempted fraud, and conspiracy to defraud, all against "the public", rather than the large number of individual complainants named in the previous informations. Only the two Applicants herein are charged.

[3] Until October 11, 2016, counsel for both Applicants pursued resolution by way of guilty pleas, through a series of judicial pre-trials with then-Regional Senior Justice Lipson, and through steady email correspondence with Crown. Considerable email correspondence among counsel was filed as part of the Application Record, by both Applicants and by the Respondent. On October 14, 2016, dates for a five week trial were obtained from Trial Coordinator, and five weeks starting January 8, 2018 were set, styled as the first available date. No formal election was taken until March 2, 2016. On that date, the Applicants elected trial in the Ontario Court of Justice through their counsel, who appeared by way of designation on their behalf. This application was set down for September 18, 2017 and September 20, 2017.

[4] Clearly, with elapsed time of forty-three months and nine days from date of charge to anticipated end of trial, an issue of unreasonable delay must be examined, as the Applicants allege that delay is an infringement of their constitutional rights under the Charter, Section 11(b). The events in question span the time, from the perspective of the law governing application of Section 11(b) of the Charter, from the Morin regime, to the framework mandated by Jordan. This is a transitional case. My analysis of the events which prolonged the pretrial time and underpin the setting of the date, through the lens of the applicable law leads me to conclude that the application has no merit and I will dismiss it.

THE FACTS

[5] The forty three month, 9 day period consists of twenty-seven months from July 4, 2014 to October 14, 2016, when the stated intention to resolve both matters by guilty plea was abandoned. The second period in the alleged unreasonable delay starts on October 14, 2016, when trial dates were procured, and ends on February 12, 2018, the last day of the anticipated trial.

[6] On October 14, 2016, addressing this matter on the record when the trial dates were first mentioned, no suggestion was made by defence that the time elapsed to that point nor the time until the end of the proposed trial raised a concern for delay. RSJ Lipson directed a further pretrial with him to determine the time which a trial would actually take and to refine trial issues. When counsel reattended on December 13, 2016 to set the date and to elect mode of trial, His Honour mentioned the need to set aside time for argument of the application. Counsel made no submissions in that regard.

[7] Over the period of thirty three months between first appearance for bail on July 4, 2014 and March 2, 2017, the appearance setting the date of this application, there were nineteen court "appearances" for the accused parties. Although these were appearances in terms of their interests being addressed before the court, the accused parties made very few personal appearances. Both parties were released on consent on the day of their first court appearance, July 4, 2014. After her release, Rossana Lim appeared by designation until this application. Shannon Lim appeared after her release from custody personally on August 6 and September 9, 2014, and thereafter by designation.

[8] Shannon Lim, 25 years old at the time of her arrest, was released the day after the arrest on a substantial surety bail with conditions. Her uncle was her surety. Among other conditions, she was to have no contact with her mother and reside at an address other than her mother's. She was prohibited from applying for or possessing travel documents.

[9] Rossana Lim, her mother, was released on July 4, 2014 also. She was released on a $10,000 surety bail. She is alleged to be the primary actor in the fraud.

[10] In the case of both Shannon and Rossana Lim, when counsel applied to vary the conditions of bail regarding communication between mother and daughter, and regarding mother's residence (after Rossana Lim sold her residence, one of several properties she owned, to raise funds for restitution), Crown consented to the variations.

[11] The Crown's allegations are summarized in the Respondent's factum as follows:

"The RCMP investigated a scheme whereby an employment company, Platinum Care, was bringing people into Canada based on false information provided to Service Canada, relating to the Live-In Caregiver's Program. Of 591 job ads that Platinum Care posted to Service Canada, only 24 were found to be legitimate. The rest were based on forged or false documents. Meanwhile, Platinum Care charged prospective caregivers, mostly females from the Philippines, up to $6,000 each, to get a job in Canada. Platinum Care represented to these people that they had real jobs for them. However, most jobs did not exist. These people were allegedly defrauded.

Rossana LIM was an owner of Platinum Care. She is the main accused person. She was actively involved with it for the entire period of the allegations. Her daughter, Shannon LIM, was not involved for the entire time. …" (para's 3,4, Respondent's Factum)

[12] The investigation, according to the affidavit of investigator Nicole Simpson, filed on the application, had been active for over a year prior to the arrests. A related investigation of the company had been launched in 2007, and closed in 2012. The lengthy and detailed affidavit does not indicate what steps were taken post-arrest to make disclosure of the quantities of material, including information in both in paper and digital formats, seized in the course of the search executed on the same day as the arrests. This is of some significance given the Applicants' complaints that the delay in getting to trial was caused in part by delayed disclosure.

[13] The chronology of Court appearances and significant events in the email correspondence may be summarized as follows:

• July 3, 2014 – date of arrest.

• July 4, 2014 – release on bail, on consent. The charges were:

• 13 x Identity Theft – s. 402.2(1)
• 24 x Utter Forged Document – s. 368(1)(b)
• 17 x Forgery – s. 366(1)(b)

• August 6, 2014 – first appearance after bail. Rossana appears by designation, Shannon was present and represented by counsel. Initial disclosure was been made; Crown indicates that more disclosure would be forthcoming and that the investigation was continuing.

• September 16, 2014 – Judicial Pretrial scheduled for November 18 – Crown was unable to provide further disclosure. Neither accused appeared personally

• November 18, 2014 – Although nothing of this was placed on the record of November 18's court appearance, the email correspondence between Ms. Weinberg and Mr. Moore, days prior, shows that further disclosure was forthcoming, including eighteen boxes of scanned materials, but that disclosure of a further 100 boxes of seized material was delayed in part due to necessity asserted by RCMP to gain approval for "a secure outside agency" to do the scanning. Crown mentions in email that computer analysis of the seized materials was part of the anticipated disclosure process. Crown adverts to the possibility of charges prosecuted by the Federal Crown. She also mentions that no request had been made to unseal the warrant and ITO, and that this usually routine process was complicated because the warrant had been issued and filed in Brampton. Crown referred to a 37 page synopsis as the basis of the JPT discussion. In court, with little elaboration, a further judicial pretrial was scheduled three months later, on February 18, 2015

• February 18, 2015 – further disclosure was discussed, in particular the Information to Obtain Search Warrant, which had not been requested earlier than that. Crown advises that a new information was anticipated, and a continuing judicial pretrial was set two months later, approximately, on April 22, 2015.

• April 14, 2015 – a 131 count information was sworn, to replace the original information. Further disclosure was been made available. The new information did not include federally prosecuted charges, as had been earlier foreshadowed.

• April 22, 2015 – Court was advised that Rossana Lim changed counsel, from Mr. Moore to Mr. Oonapuu. Counsel expresses concern that the anticipated new information would "reframe the case". A further adjournment was sought and granted "for the Crown to focus its case, determine witnesses, and see if a resolution position can be canvassed" (Rossana Lim Factum, p.4). The Judicial Pretrial was adjourned for a those purposes. Six accused including the Applicants were parties at this point.

• June 2, 2015 – fourth JPT; disclosure continues to be made and resolution positions were discussed, as well as trial issues, such as necessary witnesses for trial. Adjourned to July 23 with further JPT that day.

• July 6, 2015 – Crown emailed Mr. Oonapuu, then counsel for Rossana Lim, with a detailed plea position, indicating restitution amounts and jail terms sought, both varying depending on restitution and timing of it. Crown's position regarding Shannon Lim was described in this email to Rossana Lim's counsel. (Respondent Record Tab 7) It was contingent on the resolution by the latter.

• July 23, 2015 – a fifth Judicial Pretrial was conducted, again with the then-Regional Senior Justice. Further disclosure was made by Crown; further discussion of resolution positions reflected in emails. Further JPT was set for October 6, 2015.

• October 6, 2015 – continuing JPT adjourned to November 13

• November 13, 2015 – counsel for Rossana Lim changes back to original counsel, who continues to this day. The resolution position was confirmed as between Mr. Moore and Ms. Weinberg. (Respondent Record Tab 8) The resolution was discussed again in the terms relayed to Mr. Oonapuu as at July 6, 2015 Restitution amounts again subject of discussion. At the continuing JPT, some co-accused adjourned for guilty plea, Rossana and Shannon Lim and one other remanded for January 19 2016 for possible resolution.

• December 7, 2015 – counsel exchange details of restitution made directly by Rossana Lim and requests for amounts for restitution claimed by Crown to be outstanding

• By January 2016, some friction seemed to be emerging in the emails between counsel concerning Rossana Lim's intention to plead guilty. On her behalf, Mr. Moore asserts by email that his client has intended to plead guilty from the start, except for the period "when it looked like the federal crown might become involved and turn the case into something other than what it is". Ms. Weinberg took issue with the assertion of intention, questioning when that intent was relayed to her. She indicated that on her part, she had instructed officers to prepare for preliminary inquiry. No other email correspondence or other material filed on the Application reflects this sort of preparatory activity by Crown. The balance of those emails concerned details of restitution, which Mr. Moore raised once he was again acting for Rossana Lim in November 2015.

• Discussions continued regarding amounts of restitution and means of providing restitution i.e. sale of Balmuto St. condo; as well amounts paid by way of refund or restitution made directly by Rossana Lim to complainant parties. Counsel for Rossana asserts that his client had wanted to plead from outset and will arrange for different financing if she cannot sell the condo prior to resolution. Meanwhile five other co-accused take steps towards resolution.

• January 9, 2016 – Crown advises by letter that they will seek to adjourn to February 11, 2016 "due to possible jail strike" and because counsel requires further particulars from Crown

• On January 19, 20, 2016, there was further correspondence between counsel regarding the need for further information in order to finalize a resolution position, and to determine how Rossana Lim can make restitution

• February 11, 2016, the parties adjourned to April 1, 2016 "for possible resolution" . There were further March emails from Crown to the effect that the resolution figures not complete, and that there was further information to disclose.

• On April 1, 2016 the parties adjourned to June 28, 2016 for anticipated resolution. Further communication on May 17 suggested that resolution details were not complete; however, by June 22, all restitution details appeared to be agreed)

• June 28 – applicant was ill so the anticipated plea was adjourned to July 19, although counsel advised he might be in Superior Court July 19 – due to counsel commitments to lengthy jury trial and personal commitments, the matter was adjourned to October 11 for resolution.

• Counsel agreed to appear on October 14 as RSJ Lipson was unavailable Oct 11. On September 21, 2016, further particulars were disclosed regarding resolution. On October 11 counsel advises they will not be resolving.

• October 14 dates selected for trial – January 8, 2018 to February 12, 2018. Adjourn to December 13 for JPT regarding trial requirements.

• December 12, 2016, a three count information was sworn and replaced the previous information. That is the information on which Crown proceeds currently.

• December 13, 2016 – further disclosure was made concerning items seized during execution of warrant. The current information was placed before the Court. Some reference was made to a notation of an 11(b) motion, which was on a pretrial form. Counsel for the Applicants said nothing about it. The matter was adjourned to March 2 for elections and to schedule dates for the 11(b) application

• March 2, 2017, neither Applicant/Accused was present in Court. Crown had asked that they be present on that and the two previous appearances; they did not attend. RSJ Lipson took the election from counsel, pointing out that is a procedure contemplated by the Criminal Code. Some discussion of an 11(b) application ensued, along with a discussion of suitable dates for it. No assertion of readiness for earlier dates nor of efforts to obtain such was mentioned.

[14] It is noteworthy that with the release of the Jordan decision on July 8, 2016, there was no change in the nature or the pace of the proceedings, which continued as at that date to envisage resolution. Indeed, it appeared that counsel was "in funds" for the resolution at that date.

[15] The chronology for Shannon Lim follows her mother's, so far as the dates go. It is clear that she anticipated resolving her matter, contingent on her mother's resolution. A non-custodial position was the anticipated result, upon substantial restitution by and jail term for her mother. Even after additional disclosure specific to Shannon Lim was made on October 1, 2015 and on November 18, 2015, to facilitate resolution, resolution of her charges was contingent on the resolution of her mother's charges. Discussions continue between counsel even after dates for trial were selected in October 2016, with a view to resolution. It is noteworthy that as late as March 2, 2017, when elections for trial were made in relation to the dates selected in December 2016, Shannon Lim had retained counsel only for the purposes of pre-trial resolution and pre-trial applications, notably this one.

Positions of the Parties on the Application

[16] In describing the elapsed time from the date the first information was sworn, July 3, 2014, until the anticipated end of trial, February 12, 2018, both Applicants and Respondent assert that they are not responsible for any delay.

[17] On behalf of the Crown/Respondent, the position is that Rossana Lim was bargaining in bad faith and never actually intended to resolve, just meant to create a sufficient cloud of confusion concerning resolution numbers that it could be blamed on Crown for not providing a resolution position.

[18] While the record of email correspondence between counsel, filed as part of the record on the application, shows that both Applicant Rossana Lim and Respondent engaged in detailed correspondence regarding the calculations required to determine the extent of refund or restitution effected by Rossana Lim, and its impact on the restitution number claimed by Crown, there was no complaint about the pace of resolution discussions as they were occurring. Nor was the suggestion made by either party that the resolution could be effected by guilty plea without finality as to restitution. In fact, the correspondence shows that the Crown position with regard to incarceration varied significantly depending on the extent of "up-front" restitution: four years' incarceration if $170,000 paid prior to plea, with a balance of $320,000 by way of restitution order, and five years if no restitution made beforehand. The quantum of restitution claimed by Crown is significant and impacted on the Crown position for the fit penitentiary sentence. It is understandable that with such significant variation in Crown position, Rossana Lim would not enter a guilty plea without certainty about the amount, if any, of "upfront" restitution she would make.

[19] The history of Crown efforts to finalize the plea position dates to November 18, 2014, where Crown advised that she planned to contact counsel prior to the next JPT regarding things including plea position. November 18, 2014 was when the first JPT was conducted, and the second court appearance, following the arrests and initial court appearances. Both Lims and co-accused Sarlat and Mendoza participated through counsel in this JPT before RSJ Lipson.

[20] Just prior to this date, the correspondence with counsel Moore showed that there was a possibility of federally prosecuted charges being added. Issues with disclosure and further progress in making it were revealed by Crown. Analysis of the voluminous material was mentioned as well as a "hyperlinked USB key", contacting disclosure was mentioned. As well, Crown's efforts to unseal the search warrant package were communicated. (Rossana Lim Record, Tab 2(f))

[21] Correspondence with Rossana Lim's then-counsel Mr. Oonapuu on June 17, 2015 concerned the Crown's meeting with RCMP to determine a plea position.

[22] No further email was exchanged until July 6, 2015, concerning the timing of restitution and the impact on proposed term of incarceration for Rossana Lim. Details of the proposed resolution were set out by Crown on that date. (Respondent Record Tab 6)

[23] Mr. Moore returned to the file as counsel for Rossana Lim, emailing on November 12, 2015 to Crown his understanding of the plea position communicated to previous counsel, and asking for the schedule of persons to whom restitution was to be paid as "some people have been provided refunds over the years and I need to verify the amount is correct before agreeing to the order" (Respondent's Record, Tab 7)

[24] January 8 and 19, 2016 were set in anticipation of Rossana Lim pleading guilty but a "slowdown at the jail" was mentioned by Crown as a reason not to go ahead. I speculate that this would have affected the processing of Rossana Lim once in custody, although the link between the jail slowdown and the plea was never explicitly addressed in any of the material provided to this Court and certainly not on the record. On January 19, the matters were adjourned to February 11, 2016. As well, on Rossana Lim's behalf, counsel had indicated on January 8, 2016 that no plea would go ahead without details of the restitution, which had been requested continuously since Mr. Moore returned as counsel. (Rossana Lim record, Tab 2(g))

[25] It appears that the details, in terms of names and addresses of aggrieved parties to receive restitution, were communicated by Crown on February 10. 2016. No "pro-rata" amounts were set out. The issue of the means by which Rossana Lim would make restitution, and that appeared to be a delay factor. (Respondent's Record Tab 9) In an email that day, Crown Ms. Weinberg advised that she had "names and addresses for restitution for your client, but obviously, it is too late for your client to make restitution before tomorrow. I have not yet calculated pro rata amounts" (Respondent materials, Tab 9) Promptly, within the hour of this Crown email, counsel for Rossana Lim indicated that he would consult his client concerning the manner in which she would raise the funds to pay restitution. The sale of her condominium in the Yorkville area of Toronto was one means discussed; alternately, her property might serve as collateral for that purpose. In the result, on February 11, 2016, two of the co-accused resolved their matters on one count of the 131 count information and charges were withdrawn against two others. With regard to the Applicants, the matter was adjourned to April 1, 2016. Although the Court did not explicitly ask why the remand, Crown asserted "Do you need a full explanation why they're going over? We're just not there yet". No comment on behalf of the Applicants was registered.(Tab M, Applicant Record)

[26] Again on April 1, Crown spoke to the need to adjourn without stating reasons on the record, merely making a vague allusion to the complication of perfecting the plea. In adjourning to June 28, Defence affirmed that the adjournment was for the purpose of guilty pleas.

[27] When the matter returned to court on June 28, Crown raised concerns with the authenticity of the reason asserted for the adjournment, that Rossana Lim had the flu, although her lawyer showed the Court photos of the medication prescribed to his client on the weekend, the days prior to the appearance. The Court did not inquire closely into it, and adjourned to July 19.

[28] As late as July 15, 2016, Crown made email inquiries concerning the status of restitution, whether counsel was in funds: "please confirm your client's cheque was good"; the response 5 minutes later : "yes money is good" (Respondent Record Tab 17)

[29] However, as Counsel had cautioned when setting the date, he was in fact in another matter on July 19 and unable to attend on this resolution. The matter was adjourned to October 11.

[30] During the days leading up to the anticipated plea, further correspondence was exchanged regarding the restitution details. On October 11, the Court was unavailable, and a further adjournment to October 14. The Application and Respondent Records do not provide precision as to when the lengthy negotiation finally broke down; however, on October 13, counsel Mr. Danson on behalf of Shannon Lim emailed Crown saying that he had only recently learned that Rossana Lim was not pleading, and that "of course this changes matters for Shannon Lim" (Resp record Tab 21.)

[31] However, on October 14, the Court was advised that the guilty would not be entered, as anticipated. RSJ Lipson observed:

"The Court: Yes. Today was at one point reserved for resolution in this matter of Lim and Lim. Apparently the parties at this point wish to go to trial. I won't take a formal election now but it's my understanding that the accused wish to be tried in the Ontario Court of Justice. Is that correct?

Mr. Moore: That's correct, Your Honour.

The Court: And parties have met with the trial coordinator and a number of weeks in - starting in January 2018 have been chosen. There has not yet been a meaningful judicial pre-trial in this case, and I want to say that at least in terms of the judicial pre-trial process we've held a number of them all - for almost a year now and counsel have tried to resolve this matter. We're down from quite a large number to two people, and many have plead guilty and we're down to two, and we have not yet had a meaningful judicial pre-trial through no fault of counsel who were working on resolution up until now. I don't think there's any issue concerning delay on that part. However, we do need to really organize the time we have set aside for trial. It may not be necessary after a judicial pre-trial to have five weeks. It may be less but I'd like the crown to be in a position, as well as the defence to have a productive judicial pre-trial in December and confirm those dates." (Tab R: Transcript R v Lim et Lim, October 14, 2016)

[32] On behalf of Rossana Lim, in response to the Court's comments regarding the judicial pre-trials and the absence of any discussion of trial needs, Mr. Moore stated that "in the earlier stages [of JPTS] it was a lot – principally about disclosure and identifying – counsel switches and things like that". Clearly no complaint was registered at that point about any delay in getting to the point of setting a trial date.

[33] In subsequent correspondence, counsel on behalf of Shannon Lim continued to attempt to resolve the matter, although the trial dates anticipated her trial as well. Counsel noted that he was not retained for trial, only for pretrial purposes.

[34] To attempt to frame the elapse of time from charge to anticipated end of trial in the all-too-familiar chart form utilized for 11(b) analysis under Morin, I would characterize this history as follows:

• July 3 to November 18, 2014 – intake – neutral – 4 months 15 days
• November 18, 2014 to July 6, 2015 – Crown seeking funds to scan further disclosure, considering new information (sworn April 14), Crown formulating resolution position communicated to Rossana Lim July 6, 2015 – Crown delay
• July 6, 2015 to November 13, 2015 – no response by Rossana Lim counsel regarding resolution position – Defence delay
• November 13, 2015 to June 28, 2016 – resumption of discussion, correspondence and negotiation regarding Rossana Lim resolution – neutral
• June 28, 2016 to October 11, 2016 – defence adjournment request – accused illness, counsel unavailable – Defence delay

[35] On July 8, 2016, the analysis of delay, from a constitutional perspective, changed, with the release of the Jordan decision. From that point in time, the Morin criteria no longer applied. The significant issues in this case are defence delay and particular complexity of the prosecution, and the application of the transitional exception. I will review those below.

[36] I note however, that throughout, no complaint regarding the amount of time required for the negotiation was raised until December 13, 2016. RSJ Lipson commented that according to the notes from the JPT that day, time needed to be scheduled for an 11(b) application.

THE LEGAL FRAMEWORK

[37] The legal framework for analysis of a claim for relief for s. 11(b) infringement is currently governed by the landmark decision on the Supreme Court of Canada in R. v. Jordan. That decision was rendered on July 8, 2016. As we are well aware, Jordan dramatically changed the analysis from the prevailing Morin regime. Jordan sets presumptive ceilings of time, to be considered reasonable from the perspective of Section 11(b) analysis. A few categories of time elapse are set out, which may justify an assessment of reasonable time to trial in excess of the Jordan ceilings. Presumptively, a trial in the Ontario Court of Justice within 18 months of the information being sworn is considered reasonable. Defence delay, particular complexity of the case, and discrete events may affect the calculus.

[38] In this case, with the information sworn July 3, 2014 and an anticipated trial completion date of February 9, 2018, the time to trial exceeds the ceiling. It will be forty three months, 9 days from the time the first information was sworn until the anticipated completion date.

[39] This is a transitional case. The case predates Jordan: it had been in the system for 24 months and five days when the law changed with Jordan. The Court in Jordan anticipated the obvious, that many cases would require analysis of delay alleged to bridge the periods regulated, as a matter of law, by both Morin and Jordan. These are referred to as "transitional cases".

[40] The practical impact is that in assessing a claim for unreasonable delay, raised by application argued on September 18 and 20, 2017 with respect to a trial set to commence on January 8, 2018, the Court must view the elapse of time prior to and following July 8, 2016, as set out compendiously in the decision of R. v. Coulter, and as elaborated by the Supreme Court of Canada in R. v. Cody. Thus the well-known criteria under Morin have significance chiefly in terms of defence delay.

[41] After calculating the total delay between charge and anticipated end of trial, and deducting any defence delay, the delay in this case, as we will see, is well beyond the presumptive ceiling. That is called the "net delay", to use Justice Gillese terms in Coulter (para. 66). It is therefore presumptively unreasonable and the Crown/Respondent bears the onus in establishing exceptional circumstances, to rebut the presumption (Jordan, para 47.)

[42] To rebut the presumption, Respondent/Crown may show exceptional circumstances – they fall into two categories. Discrete events and/or particularly complex cases may be found to make the delay a reasonable one. This is not a case where any "discrete event" is argued. The issue of complexity will be considered.

[43] As well, the reliance on the "parties' reasonable reliance on the law as it previously existed" (Coulter, para. 97) must be considered as well.

[44] The key to the proper understanding of this case is the manner in which we characterize the discussions ongoing through many judicial pre-trials and ongoing correspondence between counsel with a view to resolution of the charges, short of trial. I acknowledge that there was no explicit waiver of the delay by either accused, but given the course of negotiation prior to setting a date in October 2016, the issue of waiver cannot be dismissed that simply. I can only conclude that this is a case of implicit waiver, waiver by conduct of informed, experienced counsel on behalf of their clients. My review of the law of waiver in the context of these plea negotiation follows.

REBUTTING THE PRESUMPTION OF UNREASONABLENESS: DEFENCE DELAY

[45] In terms of defence delay, a review of the period of time prior to the anticipated end of trial shows that in the terms used at the time, the period between the charge and the first judicial pretrial on November 15, 2014 would have been considered neutral intake time. Thereafter, with the defence request for a resolution position that day, the answer was not forthcoming until June 2, 2015. Between those dates, at the February 18, 2015 appearance, disclosure was prepared, released and discussed, and the anticipation of a new information announced. At the April 22, 2015 appearance, the new information, sworn April 14, 2015, was before the Court, and it was said to "reframe" the case. The changes in the parties, the named complainants, and the number of counts alone suggests that. However, I am not aware of any new legal issues which arose, or any previously unforeseen disclosure.

[46] On April 22, 2015, the Court was advised that Rossana Lim discharged Mr. Moore and retained Mr. Oonapuu. A further adjournment was obtained that day, according to representations on the record, to focus Crown's case, determine its witnesses, and see if a resolution position could be canvassed. Although Rossana Lim had changed counsel, there was no perceptible impact, disclosed in the material, on the progress of the matter. At the June 2, 2015 appearance, again, counsel indicated to the Court that there was continuing disclosure being made and continuing discussions of restitution in connection with resolution. Trial issues were mentioned as a topic of discussion. The plea position was communicated by Crown to defence on July 6, 2015. At the July 23 appearance, again, the Court was told of further disclosure and further resolution discussions. From July 23, 2015 to November 12, 2015 there is no indication of any steps taken to further the plea position as indicated by Crown.

[47] On November 12, 2015, Mr. Moore was retained again. In advising Crown of this, Mr. Moore asked to confirm his understanding of the position and to obtain "a schedule of the people who are owed money and the amounts… some people have been provided refunds over the years ". On behalf of Rossana Lim, counsel needed to confirm the significant details of the restitution claimed by Crown. Correspondence over the following months indicated attempts to clarify the restitution. Guilty pleas of co-accused, in particular, Leahnette Acuna, involved related restitution orders which impacted the restitution amount in this case. Ms Acuna resolved in January 2016. The discussions between counsel were ongoing, with regard to the amount and payees of restitution. The discussions involved not only the allocation of restitution amounts but as well Rossana Lim's ability to pay, depending on sale of her condo or raising funds using her property as collateral.(Tabs 12, 13 – Respondent's Record)

[48] June 28 was set as the date for the plea from Rossana Lim, but she was sick on that date, and an adjournment sought. Although in submissions on this Application, Crown Respondent disparages the authenticity of Rossana Lim's position on that date, counsel advised the Court of it that day and showed the Court prescriptions issued the previous days, to support his assertion.

[49] On the adjournment of the June 28 appearance, the plea was rescheduled for July 19, and then July 27. To Crown's email inquiry on July 15: "And Dan- please confirm that your client's cheque was good and it's in your account. This is an important matter to us", counsel Mr. Moore confirmed that he was in funds to make the anticipated restitution: "Yes money is good" (Tab 17, Resp Record). However, due to conflicting court obligations and "personal reasons" for taking part of the summer off, Mr. Moore was unavailable to reschedule the plea until October 11.

[50] It becomes apparent that defence delay can be assessed between July 6, 2015 and November 12, 2015, when no steps were apparently taken to further the resolution on Rossana Lim's behalf, and between June 28 and October 11, 2016, when for reasons indicated above, defence could not proceed with the anticipated plea. This amounts to seven months, 19 days (234 days), in total. Thus, with the total delay from date of charge to anticipated trial completion at 43 months 9 days (1319 days), the net delay is approximately 36.2 months. Clearly, the net delay is well in excess of the eighteen months' presumptive ceiling for timely trials in this Court.

[51] I acknowledge as well that the claims for Charter relief are different for each Applicant/accused, and must be analysed in the context of their individual circumstances. However, much of the relevant history is identical. The overarching pattern is that Shannon Lim awaited her mother's resolution in order to achieve a favourable resolution for herself. Once a trial date was set, she continued to seek a resolution. This does not impact the calculation.

REBUTTING THE PRESUMPTION OF UNREASONABLENESS: COMPLEXITY AND TRANSITIONAL EXCEPTIONAL CIRCUMSTANCE

COMPLEXITY

[52] I then move to examine whether the Respondent in this case can rebut the presumption of unreasonableness in this case. Respondent asserts two factors which remove the case from the presumptive conclusion that just over three years to complete the trial in the Ontario Court of Justice is unreasonable: one is the complexity of the case, and the other is reliance on conditions prevalent during the time of negotiations, in terms of waiver of delay waiver.

[53] The Supreme Court in Cody refines the descriptions of "exceptional circumstances" which may be pleaded by Respondent to rebut a presumption of unreasonableness. In this case, only the issues of "particular complexity" (para's 63 -65) and the "transitional exceptional circumstance" (para's 67 to 74) apply. No discrete event occurs, for the purposes of this analysis.

[54] The Court in Cody discusses the focus of a "complexity analysis":

Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case's complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable. A particularly complex case is one that "because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time"

[55] I note that with regard to both of these exceptions, the Court emphasizes that it is a qualitative analysis, or exercise, which must be engaged. To use the words of Justice Gillese in Coulter, in a transitional case, the new framework must be applied" contextually and flexibly (Coulter para 88; Jordan 94). Referring again to the succinct formulation by our Court of Appeal in the Coulter case, a

"Particularly complex cases are cases that, because of the nature of the evidence or issues (or both), require an inordinate amount of trial or preparation time such that the delay is justified" (para 51)

[56] Justice Trotter discusses the indicia of "complexity" in an appeal from a fraud prosecution, the case of Baron. From paragraphs 67 to 72 he reviews circumstances of the case before him which led to a conclusion of complexity. He took into account the number of accused – three in that case; the number of victims – 22 – and millions of dollars in losses. Justice Trotter took into account the assessment of the Legal Aid authorities, who considered the case to be complex, dealing with it through its "Big Case Management" process. He commented as well on the impact of trial time. In that case, the five weeks set aside were not required: the trial was completed in eight days. The Court reflected that "The case did not shed its complexity merely because the trial was shorter than anticipated". (para 70)

[57] In sum, the Court refers to its decision in Picard, on this issue:

"In gauging the complexity of the case, it is an error to focus exclusively on the end product, - the trial. Case complexity must be evaluated over the course of the entire proceedings. As Rouleau J.A. held in Picard, at para 62:

'A case can be complex in the earlier stages and require extensive disclosure, the compiling of expert evidence and numerous witness statement, only to be made simpler and more straightforward when it comes time for trial… These kinds of complexity in the early stages may result in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry and so on, although the case is simple by the time of trial'"

[58] In this case, to demonstrate complexity, Respondent refers to the volume of material which was seized. Over one hundred cell phones were seized at the business premises of Rossana Lim, as an example. Although not specified, the time to extract information from them clearly required time and expertise. The email correspondence showed that that analysis had not been completed even as at October 9, 2014 (Tab 4, Respondents Record). Similarly, the character of some of the items seized remained unclear as at that date: an item initially understood to be a hard drive computer tower was being viewed as possibly a security system. Several laptops were seized as well as years of accounting invoices. Their contents needed to be extracted and analysed in order for the Crown to be ready to disclose the information in its possession or control, relevant to the prosecution. Without itemizing the disclosure, it appears that the search yielded 110 boxes of material, 203 cell phones in total, 52 "magic jacks", 63,000 emails. Crown anticipates calling approximately 40 witnesses at trial. Crown synopsis alleges over 170 complainants, who were defrauded to the extent of over one million dollars. With 170 complainants, Crown alleges a theory of prosecution involving as many as 567 people who were defrauded. (Respondent's Record, Tab 1)

[59] Seven individuals were prosecuted in this matter, and as of April 14, 2015, the Crown re-laid the informations, substituting the original 64 count information with a 131 count information. Charges were withdrawn against one individual, and four others resolved their matters by way of guilty plea well before July 2016. In December 2016, after trial dates were set, and all but the two applicants had resolved their matters, a simplified three count information was sworn and laid before the Court.

[60] However, I note as well that the investigation had been ongoing for at least a year prior to the arrests. When Crown indicates in November 2014 that it is seeking authorization for an outside agency to scan materials seized for the purpose of disclosure, I cannot see that as a proper indicator of complexity, for the purpose of this analysis. This was a circumstance that must have been long-apparent to the Crown. In any event, as Justice Green points out in the Keyes decision:

"There may well be occasions – last minute witnesses, sudden recantations, fresh forensics, for but a few examples – when late disclosure proves unforeseen or unavoidable. For the most part however, disclosure, and its timing, is a matter entirely within the Crown's control (para 38) … Exceptional complexity may sometimes explain the delay involved in preparing full disclosure. It does not excuse a delay in affording that disclosure once it is within the Crown's control" (para 42)

[61] In this case, disclosure was made over an extended period of time, from the first judicial pretrial on November 18, 2014 through at least July 23, 2015. However, Respondent asserts that notwithstanding the volume of disclosure, the number of anticipated witnesses, and some of the technical issues associated with analyzing and reproducing the disclosure for release to counsel, no request was ever made for disclosure of any item relevant to a trial issue. Apparently no request for the search warrant or the underlying Information to Obtain was made. Counsel asked for the return of items to assist Rossana Lim in filing her taxes, or her personal items like her phone or laptop, but not for anything in relation to a potential trial.

[62] With regard to the multiple accused, the number of individuals impacted the preparatory work required in terms of disclosure, case preparation and judicial pretrial discussions with a view to resolution. Clearly the resolutions relating to the other accused occupied the Court's time, both in judicial pre-trials and in guilty pleas, and in one case, the withdrawal of charges. The assessment of restitution owing was impacted as well by the restitution paid by other accused. I note the email correspondence at Tab 12 of the Respondent's Record, discussing not only the details of amounts alleged to be the subject of restitution by Rossana Lim, but as well, the amounts attributed to the restitution paid through the plea of an accused who accepted significant responsibility in carrying out the fraudulent activity. This was part of the calculation of Rossana Lim's restitution amount.

[63] In addition to the changes in direction of the prosecution, evidenced by the changes of Criminal Code charges on which the Crown was proceeding, there was some consideration by another enforcement agency, the federal prosecution service, of pursuing charges within their jurisdiction.

[64] These are circumstances that might be considered as adding to the complexity of the trial.

[65] Although counsel on behalf of Rossana Lim commences his submissions on the Application by submitting that despite the numerous parties and complainants, and the volume of disclosure material, this is at heart a simple straightforward matter, I must conclude that there is moderate complexity in this matter. I rely on the analyses of the Court of Appeal in Baron and Picard, cited earlier, in coming to that conclusion. I am particularly impressed, for today's purposes, by the apparent complexity of the calculations of restitution. Counsel spent considerable time pointing their proverbial fingers at each other, saying that the calculation of these amounts was impeded by the lack of co-operation from the other. Applicant says that the slow response of Respondent in providing the amount impeded resolution; whereas Respondent says the necessary information to complete a calculation of the amount, in terms of how much was paid as refunds to various complainants was within the knowledge and control of the Applicant Rossana Lim, and it was not forthcoming. In fact, in argument, and highlighted in the written submissions in part, Respondent alleges that Applicant deliberately obfuscated and delayed her response to the Crown in the course of plea negotiation to concoct an unconstitutional delay to be pleaded at a later time.

[66] I specifically reject those allegations. While the attempts to ascertain and agree upon the restitution amount certainly occupied considerable time, I point out the following factors:

• This information related to the complainants Crown intended to call evidence from, thus they were presumably available to Crown to interview on this issue

• During the protracted discussions, the matter returned to RSJ Lipson on a regular basis. To suggest that illegitimate steps amounting to bargaining in bad faith on the part of the Defence was ongoing literally in the face of the Court is a very serious allegation, and one which is simply unsupported by the record. Albeit conducted at a leisurely pace, it appears that counsel were in cordial focused and earnest correspondence with a view to ascertaining critical and complex information. Moreover, to the extent that the restitution amount impacted the property and liberty interests of Rossana Lim, as well as Shannon Lim's liberty interests, it clearly warranted careful calculation by counsel.

• Respondent points to the amount of time required by Applicant Rossana Lim to sell her condo in downtown Toronto, saying that the amount of time she took to sell betrays bad faith bargaining. I am not about to take judicial notice of the time required to sell a condo at an acceptable price at the relevant time period, despite the newsworthiness that Toronto real estate seems to constantly warrant. In any event, the Respondent's Record includes correspondence indicating that raising money with the property used as collateral was one avenue under consideration by Applicant Rossana Lim, so sale was clearly not the only option under consideration. Timing was another factor, as the possibility of a payment schedule seemed to part of the plan.

• With regard to both Rossana Lim and Shannon Lim, in suggesting that Respondent was taking an inordinate amount of time to provide restitution numbers, thus shifting responsibility for the protracted discussions to Crown, I note that while the discussions in pretrial setting with RSJ Lipson were clearly in chambers, no note of this issue made its way to the record of court appearances. Further, Shannon Lim stood to gain considerable advantage by her mother's resolution with suitable allocation of restitution and jail numbers. She did not raise an issue in terms of timeliness. She did not complain that her right to a trial within a reasonable time was jeopardized by the time apparently required for her mother to resolve. The correspondence from her counsel indicated that the wait was warranted and desirable, as it would result in a Crown position for a non-custodial disposition, contingent on her mother's resolution.

• Neither accused sought a resolution without the clarity – which seemed prudent – of the numbers. Nor did Crown press for a resolution without clear factual underpinnings on sentence.

TRANSITIONAL EXCEPTIONAL CIRCUMSTANCE: RESOLUTION DISCUSSIONS AND WAIVER

[67] The overriding circumstance which must be considered, as referred to earlier, is the simple fact that from time of charge until October 2016, the course of proceedings on behalf of both Rossana Lim and Shannon Lim was intended to resolve the charges short of trial, by way of guilty pleas. The time required for resolution is a circumstance which in my view speaks to the parties' reliance on the law at the time. Indeed, given the significance of resolutions for the criminal justice system as a whole, the significance of those discussions has not changed with the Jordan decision. The pace at which they are undertaken, however, might well be affected.

[68] I note that in this case, the entire course of events prior to the Jordan case changing the law was consumed by the resolution discussions. Indeed, resolution track continued to be the course this case was on for some months following Jordan.

[69] Respondent characterizes this as explicit waiver. While I would not go that far, I do note that in the case of Lahiry, Justice Code helpfully considers how waiver might be expressed.

"However, a waiver can also be implied, for example, from consent to a period of delay where 'a choice has been made between available options' and 'the action the actions of the accused amounted to an agreement to the delay' rather than 'mere acquiescence in the inevitable". (para 6)

[70] There can be no doubt in this case that as counsel attended consecutive JPTs with the Regional Senior Justice on behalf of their clients, they were aware of the options, and that they were entertaining resolution discussions with no intent expressed in any way that they were mindful of the time issues associated with setting trial dates.

[71] Justice Code refers to delay caused by an accused in order to achieve some benefit. In this case, it was not a delay for a benefit on the 11(b) clock, in terms of intentionally delaying the proceedings. However, in pursuing the resolution, clearly some benefit was intended for the Applicants, and the Applicants cannot at this stage plead that their actions improperly delayed the trial.

"Needless to say, delays caused by the accused's own actions 'will justify' an otherwise unreasonable period of delay because the accused invariably seeks some benefit from such delays, such as additional time to prepare, to retain counsel, to bring some collateral proceedings or to try to resolve the case."(para. 79)

[72] This theme is reflected in the more recent post-Jordan decision of Justice Pomerance in the case of Porter.

"There is much to be said for the requirement that counsel discuss issues before setting a date for judicial proceeding, be it a preliminary inquiry or a trial. This is a vital step toward defining the real issues in a case. This, in turn, is critical to the determination of how much court time is required for the proceeding. Similarly, early resolution discussions can promote timely pleas and obviate the need to tie up judicial resources unnecessarily. Whether these discussions take place in the context of a judicial pre-trial, or a non-judicial pre-trial, they are integral element of effective case management. They honour the principles in Jordan to the extent that they allow for informed allocation of judicial resources.

Therefore, when considering the time frame between Aug 15, 2013 and December 19, 2013, it is important to consider the context at play. The system not only encouraged, but required, that counsel engage in meaningful discussions before setting a date." (para's 65, 67)

[73] Once it is apparent that the plea negotiation has failed, counsel wasted no time in getting dates for the trial. The record of court appearances and email correspondence filed on the application show the real world culmination of plea negotiations failing on the eve of the date set for Rossana Lim's guilty plea, counsel in funds and time available to all counsel, for October 1. It seemed to be only in discussions concerning a further date when October 11 became unavailable for RSJ Lipson, that the failure of the protracted plea discussions was revealed.

[74] At the October 14 appearance, counsel provided dates for five weeks' trial time, commencing January 8, 2018. It is on the basis of that trial time that this application is predicated, as the five weeks' period end on February 12, 2018.

[75] As RSJ Lipson pointed out, during the many pretrial meetings with him, included no attention to the trial issues. However, even without consideration in the judicial pretrial setting of trial issues and witnesses, counsel were content that five weeks be set aside immediately on October 14, after discussions with the Regional Trial Co-ordinator.

[76] No trial verification form was filed. This is a sheet from Trial Co-ordinator on which any earlier dates available to any of the parties of the court is recorded, and typically filed with the information. No assertion of earlier available five week periods for either defence counsel nor for the Crown, and no earlier five weeks' of trial time available to the Court was the subject of comment by any counsel, nor by the Court on October 14, 2016.

[77] Nor was the issue of the length of time to trial the subject of any comment that counsel might have been available for earlier trial until March 2, 2017, when dates were procured for the argument of the present motion. No discussion was entertained then or at the December 13, 2016 appearance of an earlier trial date.

[78] I note that it was not until well after the date when the rules changed for delay assessment and presumptive ceilings for unreasonable delay were announced, with the release of the Jordan decision by the Supreme Court of Canada on July 8, 2016, that counsel for the Applicants indicate any interest in setting a date for trial. By July 8, 2016, when the analysis of delay changes, there had been six judicial pretrial meetings with then-Regional Senior Justice Lipson. The intent of the meetings was quite apparently to resolve the matters: nowhere is this more apparent than in the later appearance before RSJ Lipson on October 14, 2016 when His Honour notes that "we have not yet had a meaningful JPT through no fault of counsel who were working on resolution up until now". His Honour continues: "I don't think there's any issue concerning delay on that part." No comment was made by any counsel to disagree with that proposition.

[79] At this point it is well to refer to the comments of Supreme Court of Canada in its most recent pronouncement on delay cases characterized as transitional:

"Defence conduct encompasses both substance and procedure – the decision to take a step as well as the manner, in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately take to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay" (Cody, para 32)

[80] I do not assess the efforts to resolve this matter as illegitimate or in bad faith. As a general matter, resolution discussions play a significant and positive role in the criminal courts. Without them, trial dates are frequently abandoned on the date of trial, with last minute resolutions. The benefit of early resolution to all parties is well recognized. This has been made clear since the Martin Committee made its recommendations in 1993. Justice Trafford reflected on the Report and its comments concerning "the importance of discussions between counsel aimed at the complete or partial resolution of the case" in the pre-Jordan case of Gadam:

"Such discussions may include resolution discussions relating to the case as a whole, or some of its part, that is mandated as an aspect of a JPT under s. 625.1 of the Code and the related criminal proceedings rules, and is aimed at ensuring the fairness and efficiency of the upcoming proceeding. The professional responsibilities of the Crown and the defence include an obligation to consider the interests of the alleged victim. The Crown Attorney should ensure that the interests of such victims are solicited by the Crown if it is feasible to do so. Appropriate resolution discussions are a proper and necessary part of the administration of criminal justice. In my view, such an assessment and such dialogue when conducted with reasonable diligence and reasonable dispatch are properly treated as time inherent to the case under Morin. (para. 7; emphasis added)

[81] In the Lahiry case, Justice Code reflected in a pre-Jordan context on the significance of resolution discussions:

"….the defence sought an adjournment of the first trial date in order to pursue resolution discussions. This was a proper and beneficial reason to seek delay. However, the inevitable cost of this decision, should the resolution discussions fail, was that some further delay would be incurred in rescheduling the case for trial." (para 68)

[82] More recently, in the case of Porter, Justice Pomerance discussed the impact of resolution discussions in the analysis of an 11(b) application in a transitional case. She reflected on the situation of the case before her, involving alibi notice, and said:

"Once the defence served an alibi notice, this became the foundation for discussions between the crown and defence. These included resolution discussions, in that the defence was hoping that the crown would consider withdrawing the charge. It is apparent from the record that both crown and defence were content to hold off on setting a date until such time as resolution and other discussions were completed. During argument, counsel for Mr. Porter candidly acknowledged that she did not want to set a date while the crown was still considering its position on a withdrawal. She believed that, once a date was set, the crown would be psychologically less inclined to withdraw. Whether or not this assumption was accurate, it was the basis on which the defence proceeded. It was more important to the accused to pursue resolution than it was to pursue an early date for the preliminary hearing. Indeed, it was the defence that requested the adjournment in the Ontario Court of Justice in order to facilitate ongoing discussions. The Crown consented to those requests." (para 62)

[83] In the present case, the transcripts show that in several instances, Crown advanced the position to adjourn in light of ongoing resolution discussions. That was on consent. There is no question but that the first six judicial pre-trials were in pursuit of resolution. There were factual issues to be clarified and agreed upon, in terms of refunds or restitution made against the total of restitution claimed. Resolution discussions were conducted on behalf of the other accused. They resulted in guilty pleas and sentencing in relation to 4 of the others initially charged, and a withdrawal against another. The course of the prosecution resulted in the charges on the initial information changing significantly. Counsel for Rossana Lim changed once to Mr. Oonapuu, then back to initial counsel, Mr. Moore. Illness of Rossana Lim, personal circumstances of counsel as well as other professional obligations presented some delay, attributed to defence. Decisions had to be made, with the related time factors, in terms of how to make the anticipated restitution funds available. All these events consumed time. Notwithstanding the claims from both parties, Applicant and Respondent, that the other was responsible for dilatory, even bad faith, conduct, the record does not support that conclusion. It might well be observed that the pace at which the steps in anticipation of resolution were taken, and perhaps as well the pace at which disclosure was made and even the change in direction of the prosecution evidenced by the new informations, was a pace which would not survive in the Jordan climate. The pace was consistent, I suggest, with the "climate of complacency" which characterized the pre-Jordan litigation. That pace promoted today's urgent attention to refocus the trajectory of criminal litigation, in order that every decision before and during trial is taken in light of the impact on timeliness.

[84] However, in considering the character of the steps taken towards resolution of the Lims' case, prior to July 8, 2016, indeed prior to December 13, 2016, it is fair to say that no one was urging a speedy resolution.

[85] It is noteworthy that at no time did the RSJ, conducting the ongoing JPT's require that a date for trial be set pending resolution. He was, it appears, tacitly in agreement that the process was an appropriate good faith use of pretrial time.

[86] Once the pretrial discussions veered from resolution track to trial, no issue was raised with the delay since the charge was laid, until months after the date was agreed on. At the appearance on October 14 when the trial dates were presented to the Court, His Honour commented that there appeared to be no issue about timing, and counsel did not disagree. This passage is quoted at paragraph 29, above.

[87] His Honour concludes his remarks on October 14, having conducted JPTs with a view to resolution over a period of nearly two years at that point, by saying: "… we do need to really organize the time that we have set aside for trial. It may not be necessary after a JPT to have five weeks. It may be less, but I'd like Crown to be in a position as well as the defence to have a productive JPT in December and confirm dates. We'll take an election at that time".

[88] No election was taken on December 13, 2016. Counsel for Rossana Lim claimed to misunderstand that his client was to appear that day for arraignment and election. The matter was again adjourned, to March 2, 2107, for the election. No issue was raised at that time with the length of time until trial.

[89] Nor was any issue raised in terms of the nearly fifteen months delay until the five week trial would commence this case. Counsel did not indicate that they were ready for trial any earlier than January 8, 2018, and Crown did not state that it would have been prepared to start earlier, or that it would make attempts to procure or at least monitor for earlier dates.

[90] While in some contexts, waiver must be directed explicitly to the issue in question, it has long been recognized that it may be implicit. I cite Justice Hill in the Pusic case:

"A waiver must be clear and unequivocal with full knowledge of the rights the procedure was enacted to protect and of the effect waiver will have on those rights (Morin @ 15)

The notion of waiver contemplates a choice has been made between available options. Where no real choice or option exists there can be no waiver (Askov @310)

A waiver may be explicit or implicit" (para's 23-25, emphasis added)

[91] He continues:

"Agreement to a date within the proceeding in question does not constitute waiver where the agreement can be reasonably and fairly characterized as mere acquiescence in the inevitable. (Morin @ 15)

[92] In this case, it would be impossible to suggest that the accused "merely acquiesced in the inevitable" in agreeing to dates over the course of the 27 months and 11 days prior to selecting dates for trial. The history, as detailed above, shows active involvement of experienced counsel in engaging in continuing judicial pre-trials over that period and participating in assessments of the requirements of a Crown resolution position. That resolution position was not available on the first set date appearance, as might be expected in a simple matter. In the light of the framework for analysis under Jordan and taking into account the complexity of this case, and most significantly, considering the actions and failure to assert concern with the elapse of time as an infringement or potential infringement of the 11(b) rights of the accused Applicants, the timing of the proposed plea does not raise concerns for unreasonable delay.

[93] This application is not about the time to a guilty plea, but the time to trial, after the failure of lengthy resolution negotiations. The application to stay proceedings as relief for an 11(b) infringement was filed well after the trial dates were agreed on. The time to completion of trial is certainly a long time after the date of charge. It is beyond the presumptive ceiling even taking into account defence delay on the one hand and complexity and transitional exceptional circumstances on the other. It is my view that the delay is the result of steps taken in furtherance of the interests of the accused. These were informed steps taken by experienced counsel on behalf of the parties. These steps were taken in a climate chiefly governed by Morin, but more importantly, governed by the stated desire, actively pursued, to resolve the charges by guilty plea. To allow an accused party to participate in a leisurely though active stroll through plea negotiations, then complain that the time taken to do that was unconstitutionally long would be wrong. The plea discussions were chiefly conducted in a different jurisprudential frame, but even in a time entirely governed by the presumptive ceilings introduced by Jordan, the Court cannot undermine the significance of active participation by all counsel in a process intended to benefit both accused, by a favourable resolution

[94] I take into account the different position Shannon Lim was in, in coming to this conclusion. I note that even after the dates were set for trial, she continued to attempt to resolve her matter. Prior to setting dates, there was no indication that she intended to act independent of her mother. The impact of her mother's resolution was, until dates were set for trial, considered to be a benefit to Shannon Lim in her resolution. She never expressed a wish, neither on the transcribed record of court appearances nor in the email which has been reproduced as part of the Application record, to seek a trial any earlier than the date when her mother's negotiations failed. Clearly she expected to benefit by a resolution contingent on that outcome.

Conclusions

[95] As the Court noted in Jordan, the release of its decision, which set up presumptively reasonable times to trial, would not "automatically transform" reasonable delay into unreasonable delay (para 102). That message was restated very recently by our Court of Appeal in the Kemp case.

[96] Nor, as my erstwhile colleague Schrek J commented in the Luoma case, ought the Court to speculate as to why an 11(b) application was not brought earlier. In this case, however, it is not a matter of speculation as to why no earlier application was brought, at least at the time the trial dates were set: clearly counsel were actively participating in the resolution process, a necessary and valuable facet of the criminal justice system. The Court's comments concerning shared responsibility for preliminary inquiry underestimations apply in this context also:

"… responsibility for the delay resulting from consent adjournments and to the defense's failure to respond to the Crown's offer of a shorter trial time in July 2011 should not be borne solely by the defence. These adjournments were part of the legitimate procedural requirements of the case, and it does not appear from the record that any occurred when the Crown and court were otherwise ready to proceed" (para 122)

[97] The process, apart from the defence delay I have noted, was a joint effort for a proper purpose. I find no steps that would, in the language developed in the Cody decision, be characterized as "illegitimate". I do see the prosecution as moderately complex: it is a large prosecution, involving several accused and many complainants and much evidence from a variety of media to be disclosed. It may involve some complicated factual issues, but apparently no unusually complex or novel legal or constitutional issues for or prior to trial. The preliminary steps were conducted at a leisurely pace, but not irresponsibly so, in the climate then prevalent.

[98] For all the foregoing reasons, I conclude that the 43 months and 9 days which are anticipated as the time to trial do not amount to an unconstitutional delay in bringing Rossana Lim and Shannon Lim to trial.

[99] These conclusions are, in my view, consistent with the approach the Court urges in Jordan, that we take the big picture into account, and not get distracted by the trees as we attempt to see the forest. To the initial relief of trial judges (before the complexity of the new system fully revealed itself) the Court instructed that

"Trial judges should not parse each day or month as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case" (para 91, emphasis added)

[100] The bird's eye view of this matter shows a lengthy period of time expended in an attempt to bring about a just resolution by way of guilty pleas, taking into account some factual complexities which both counsel worked co-operatively to sort out, and which the second accused tolerated as the resolution was perceived to be very much in her interest. These negotiations were against the backdrop of a moderately complex prosecution initially involving seven accused, and which resulted in plea resolutions on the part of four of the co-accused. Those resolutions contributed useful information for the purpose of determining the restitution amount which Rossana Lim and the Crown considered just. When, months after the Jordan decision was announced, the negotiation failed, trial dates were promptly agreed on. It was not until months after that that any intention was communicated to characterize the delay as unconstitutionally long and warranting a stay.

[101] The big picture is not, in my view, that of an unreasonable delay. It is a panorama of a lengthy process engaged in good faith, albeit leisurely, intended to bring about results entirely consistent with the proper administration of justice. The administration of justice has a keen interest in promoting resolution discussions. In this case, those discussions were both in and out of the purview of judicial pretrial meetings, with a view to resolution by guilty plea. That they failed at the eleventh hour, for reasons unknown to this court, is not a factor which suddenly transforms an agreed upon process to an unconstitutional one.

[102] Dismissing the Application, I anticipate that the trial will commence on January 8 2018 as scheduled. I do urge counsel to engage in a further judicial pretrial, if possible with Justice Lipson, especially on the issues relating to Shannon Lim's representation by counsel or otherwise.

Released: November 14, 2017

Signed: Justice S.R. Shamai

[1] In fact, shortly after arguing this application, counsel Daniel Moore was appointed to the Ontario Court of Justice. Ms. Christi Hunter, of the same law firm where Justice Moore practiced, has taken over carriage of Ms. Rossana Lim's representation.