Ruling on Application under Subsections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms

Ontario Court of Justice

Date: December 10, 2018

Court File No.: Halton - Burlington 1260-999-13-7246; 1260-999-13-7247; 1260-999-14-7592

Between:

Halton Region Conservation Authority - Prosecutor

— AND —

Houshyar Ahmad, Lavinder Aulakh, Harkamaljit Singh Bahia, Benji Transport Inc., Brock Aggregates Inc., Lewis Burchell, Dancar Haulage Corporation, Dilligaf Logistics Ltd., EarthCo Soil Mixtures Inc., G & L Group Ltd., Nana Gambrah, Gambrah Trucking Co., Courtney Gayle, Heavy Weight Trucking Inc., Hours Trucking Company, Zakir Housein, Coleen Ann Hunter, Jas Deol Trucking Inc., Jeorge Campoverde Haulage Ltd., Pasquale Lamanna, Carol McLean, Anthony Mensa, Earl Patrick, Nickolai Romantchenko, Noel Roper, Jaspal Singh, Tylors Trucking Services Inc., Surjit Uppal, Carlo Waite, O'Niel Young, Erica Young, 1167877 Ontario Inc., 1191669 Ontario Inc., 1688543 Ontario Inc., 1770195 Ontario Inc., 2163832 Ontario Inc. and 6282121 Canada Inc. under information number 13-7247; Daryn Bagg and Salman Cevlik under information number 13-7246; EarthCo Soil Mixtures Inc. under information number 14-7592 – Defendants

Before: Justice of the Peace Kenneth W. Dechert

Heard: October 17, 18, and 19, 2018

Reasons for Judgment Released: December 10, 2018

Provincial Offences Court – Burlington, Ontario

Counsel

J. Wigley – counsel for the Halton Region Conservation Authority

M. Klaiman – counsel for the Defendants

Statutes, Regulations and Rules Cited

• Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, ss. 11(b) and 24(1)
• Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended, s. 28(16)
• Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, s. 109(1)
• Criminal Rules of the Ontario Court of Justice, Rule 2.1
• Ontario Regulation 200 – Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, made under the Courts of Justice Act, R.R.O. 1990, Reg. 200, as amended, s. 7, ss. 7(2), 7(3), 7(4)
• Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, s. 34(2)

Cases Cited

• Halton Region Conservation Authority v. Ahmad, [2017] O.J. No. 6678; 2017 ONCJ 858 (Ont. C.J.)
• Halton Region Conservation Authority v. Ahmad, [2018] O.J. No. 4175; 2018 ONCJ 534 (Ont. C.J.)
• Regina v. Brown, 2018 NSCA 62 (N.S.C.A.)
• Regina v. Cody, 2017 SCC 31 (S.C.C.)
• Regina v. Colpitts, 2018 NSSC 41 (N.S.S.C.)
• Regina v. Ferguson, (2005), 24 M.V.R. (5th) 47 (Ont. S.C.)
• Regina v. Gambilla (appeal by Mamouni), 2017 ABCA 347 (Alta. C.A.)
• Regina v. Jordan, 2016 SCC 27 (S.C.C.)
• Regina v. K.G.K., 2017 MBQB 96 (Man. Q.B.)
• Regina v. Lamacchia, 2012 ONSC 2583 (Ont. S.C.)
• Regina v. MacDougall, [1998] 3 S.C.R. 45 (S.C.C.)
• Regina v. MacIsaac, 2018 ONCA 650 (Ont. C.A.)
• Regina v. Milani, 2014 ONCA 536 (Ont. C.A.)
• Regina v. Rahey, [1987] 1 S.C.R. 588 (S.C.C.)
• Regina v. S.C.W., 2018 BCCA 346 (B.C.C.A.)
• Regina v. Schertzer, 2009 ONCA 742 (Ont. C.A.)
• Regina v. Vassell, 2016 SCC 26 (S.C.C.)

K.W. DECHERT, J.P.

INTRODUCTION

[1] Under a Notice of Constitutional Question, made in accordance with subsection 109(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 as amended, dated September 12, 2018, the corporate defendants, named in informations nos. 13-7247 and 14-7592, claim a remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms being Part 1 of the Constitution Act, 1982, hereinafter referred to as the "Charter". In particular, the corporate defendants submit that their right to be tried of the offences stated in the said informations under subsection 28(16) of the Conservation Authorities Act, R.S.O. 1990, c. C.27 as amended, within a reasonable time under subsection 11(b) of the Charter, has been infringed.

[2] In the said Notice and a supplemental Application made pursuant to Rule 2.1 of the Criminal Rules of the Ontario Court of Justice, the counsel for all of the defendants herein, Mr. M. Klaiman, states that this is the second application under subsections 11(b) and 24(1) of the Charter in these consolidated proceedings. Mr. Klaiman advised that he is, in part, relying on my decision in the first such application, dated December 6, 2017.

[3] In that decision, cited as Halton Region Conservation Authority v. Ahmad, [2017] O.J. No. 6678; 2017 ONCJ 858, I ruled that the rights of the non-corporate defendants named in all three informations described above under subsection 11(b), had been denied or infringed. Accordingly, all charges against the non-corporate defendants were stayed pursuant to subsection 24(1) of the Charter.

[4] On the other hand, I determined that the rights of the corporate defendants under subsection 11(b) had not been denied or infringed. Their application to stay the relevant charges was, therefore, denied. The trial of the charges against the corporate defendants continued before me, on December 12, 2017.

[5] This subsection 11(b) Application was argued before me on October 17, 18 and 19, 2018. Following the completion of the legal arguments made by Mr. M. Klaiman and by Mr. J. Wigley, counsel for the prosecutor, the Halton Region Conservation Authority ("the Authority"), I reserved judgment on the Application.

[6] In adjudicating this Application, I have considered the contents of the following documents which have been filed as exhibits:

1. The defendants' Notice of Constitutional Question, dated September 12, 2018, being exhibit #1;
2. The parties' "Agreed Statement of Facts", dated October 11, 2018, being exhibit #3;
3. The facta filed by the defendants (two bound casebooks), dated October 11, 2018, being exhibit #5;
4. The "Memorandum of Argument of Conservation Halton", dated October 17, 2018, being exhibit #6; and
5. A "flow chart", showing time lines associated with this Application, as prepared by Mr. Wigley, being exhibit #7.

[7] In this ruling I will be using my first subsection 11(b) Charter decision in these proceedings, cited above, as a foundation. My determination as to the categorization of various periods of trial delay in that decision was based upon facts known to me as of December 6, 2017. Accordingly, this second subsection 11(b) Charter decision should be read in conjunction with my first decision, as a supplement to that decision.

[8] In my said decision of December 6, 2017, I ruled that the "subsection 11(b) clock" against the corporate defendants did not begin to run until the date of release of the decision of the Supreme Court of Canada in Regina v. Jordan, 2016 SCC 27, hereinafter referred to as "Jordan", on July 8, 2016. Furthermore, I anticipated that the trial of these proceedings would have been completed by May 18, 2018.

[9] In applying the Jordan framework for analyzing applications under subsection 11(b) of the Charter, I concluded that the "remaining delay" in the completion of the trial of the charges against the corporate defendants between July 8, 2016 and May 18, 2018, was a period of 14 months and 9 days. That period of time fell below the ceiling for presumptively unreasonable trial delay as established in Jordan and confirmed by the Supreme Court of Canada in Regina v. Cody, 2017 SCC 31, hereinafter referred to as "Cody".

[10] It is important to note that in finding that the subsection 11(b) clock for the corporate defendants did not begin to run until July 8, 2016, I determined that the period of delay during the pre-Jordan period was justified by the operation of the "transitional exceptional circumstance" recognized in both Jordan and Cody. This circumstance is no longer a factor in the analysis of the reasonableness of the post-Jordan trial delay with respect to the charges against the corporate defendants.

[11] Furthermore, in my said decision, I examined whether the presumptively unreasonable period of remaining delay in the trial of the charges against both the corporate and non-corporate defendants – in excess of 18 months (without the application of the transitional exceptional circumstance), could be justified by the application of the "particularly complex case exceptional circumstance" as defined in Jordan and Cody. After assessing the overall complexity of the case, I determined that it was not "particularly complex" so as to rebut the presumption of unreasonableness relative to the remaining trial delay.

[12] I adopt my decision in that regard for purposes of this second subsection 11(b) Application.

BACKGROUND FACTS

[13] In order to determine whether the rights of the corporate defendants under subsection 11(b) of the Charter after May 18, 2018 have been infringed, I must apply the Jordan analytical framework, in the context of the findings of fact made in my said decision of December 6, 2017.

[14] The trial of the charges against the corporate defendants was not completed by May 18, 2018, as anticipated. The Authority closed its evidentiary case in these proceedings in the early afternoon of January 23, 2018. The corporate defendants tendered evidence through four witnesses (two of which were expert witnesses) in the afternoon of January 23, on February 2, 2018, on February 26, 2018, in the afternoon of February 27, 2018 and on March 2, 2018, when they closed their evidentiary case.

[15] Mr. Klaiman proffered his final legal submissions on March 5, 2018, for a full day and subsequently during the morning of March 6, 2018. Mr. Wigley began his final legal submissions in the afternoon of March 6, 2018, and continued those submissions during the afternoon of April 12, 2018. On that date at 3:38 p.m., Mr. Wigley sought to amend 3 charges against the defendant, 2163832 Ontario Inc., without notice to that defendant, to reflect the testimony of defence witness David Snyder, tendered on February 27, 2018, under the authority of subsection 34(2) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended, hereinafter referred to as "the P.O.A."

[16] At that time, Mr. Klaiman advised that he was opposed to the proposed amendments and that he was not in a position to consent to the relaxation of the Rules of Procedure relative to motions or applications under the P.O.A., set out in section 7 of the Ontario Regulation 200, under the Courts of Justice Act, supra. I then ruled that in light of the subject matter or the circumstances of the amendment motion, it was unjust to hear the motion without formal notice to 2163832 Ontario Inc., in accordance with subsections 7(2), 7(3) and 7(4) of Ontario Regulation 200.

[17] The proceedings were then adjourned to the next scheduled trial date - June 11, 2018, for continuation, including the prosecutor's anticipated motion to amend with notice to Mr. Klaiman on behalf of the said corporate defendant. At that time I reserved two further days for the continuation of this trial, as offered by the court administration, being July 9, 2018 and July 23, 2018.

[18] It should be noted that prior to the completion of the trial proceedings of April 12, 2018, Mr. Wigley advised that he would attempt to re-schedule the hearing of the subject motion to amend the information on an available "motion day" prior to June 11, 2018, in the Burlington Provincial Offences Court, with appropriate notice to the corporate defendants. Mr. Wigley was not, however, able to schedule a date or dates for the hearing of the motion prior to June 11. The Authority's formal Notice of Motion dated May 25, 2018, seeking to amend all 30 charges against 2163832 Ontario Inc. to expand the time frame for such charges and to vary the particulars of 3 of the charges, was properly before me for argument on June 11, 2018.

[19] Mr. Wigley presented his legal argument in favour of the proposed amendments in the morning of June 11, 2018. Mr. Klaiman argued in opposition to the proposed amendments during the afternoon of June 11, 2018 and the morning of July 9, 2018. Mr. Wigley then proffered his reply arguments throughout the afternoon of July 9. The motion to amend was then adjourned to the next scheduled trial date, July 23, 2018, for my ruling followed by the continuation of Mr. Wigley's final submissions on the trial proper.

[20] I presented my ruling granting the Authority's motion to amend, orally, in the morning of July 23, 2018. That ruling is reported as Halton Region Conservation Authority v. Ahmad, [2018] O.J. No. 4175; 2018 ONCJ 534.

[21] Following the delivery of my said ruling, Mr. Wigley continued his final submissions for a further period of approximately 2½ hours. The last hour of that trial day was used to discuss the estimated time needed to complete the trial with the parties and to attempt to find and secure adequate court time to complete the subject trial proceedings.

[22] After canvassing a number of available dates offered by the court administration in August and September 2018, the trial was adjourned to the next available dates of October 17, 18 and 19, 2018, for continuation, including the completion of Mr. Wigley's final argument and the reception of Mr. Klaiman's anticipated reply submissions.

[23] In their "Agreed Statement of Facts" filed as exhibit #3 to this Application, Mr. Wigley and Mr. Klaiman agreed that on July 23, 2018 the court administration was able to offer the following dates, prior to October 17, 2018, for the continuation of the trial: August 3, 2018, August 20, 2018, August 27, 2018, September 10, 2018 and September 17, 2018. They acknowledged that none of those dates were available for trial continuation for the following reasons:

• (a) August 3, 2018 – Defence not available;
• (b) August 20, 2018 - Prosecution not available;
• (c) August 27, 2018 – Defence not available;
• (d) September 10, 2018 – Prosecution and His Worship not available;
• (e) September 17, 2018 – His Worship not available.

[24] As stated above, this subsection 11(b) Application was argued by the parties during the period between October 17, 2018 and October 19, 2018. On October 19, 2018, I reserved judgment on the Application.

[25] The subject proceedings were then adjourned from October 19, 2018 to December 10, 2018, (being a date which had been reserved on July 23, 2018) for trial continuation.

[26] On October 19, 2018, the court administration was able to offer two further dates for trial continuation in the month of November 2018; November 6, 2018 and November 26, 2018. Mr. Wigley and Mr. Klaiman worked collaboratively to clear their schedules so that the trial could continue on those dates.

[27] The trial proceedings were brought forward for continuation on November 6, 2018. On that date, Mr. Wigley filed further written legal submissions and after answering my interrogatories pertaining to those submissions, he completed his final legal submissions at approximately 12:00 p.m.

[28] Mr. Klaiman began his reply submissions at approximately 1:15 p.m. on November 6, 2018. He continued those arguments, to supplement his filed, written submissions, in the morning of the next scheduled trial date, November 26, 2018. He completed his arguments in reply, including his response to my questions at approximately 2:30 p.m. I then reserved my judgment on the trial proper. The proceedings were then adjourned to December 10, 2018 at 9:00 a.m., for my judgment on this Charter Application.

THE ISSUES

[29] The issues in this Application may be categorized as follows:

1. What is the event that signifies the anticipated end of the trial in these proceedings, for purposes of the Jordan analytical framework? and

2. Whether the Authority's motion to amend information number 13-7247 relating to the charges against 2163832 Ontario Inc., constituted a discrete, exceptional circumstance so as to justify the trial delay consumed in the adjudication of that motion, in the context of the Jordan analytical framework?

Issue No. 1 – When does a trial "end" for purposes of assessing whether or not the delay in the completion of the trial exceeds the ceiling for presumptively unreasonable delay as established by Jordan?

[30] The sub-issues relevant to this issue are as follows:

1. Whether or not the trial ends at the completion of any potential sentencing proceedings? and

2. Whether a jurist's reserve or deliberation time prior to rendering a judgment, relative to a charge against an accused person should be included as part of the time between the charge and the anticipated end of the trial, in the context of the Jordan ceilings for presumptively unreasonable delay?

Issue No. 2 - Does the Authority's motion to amend information number 13-7247 as against 2163832 Ontario Inc. constitute a discrete, exceptional event so as to justify the trial delay occasioned by that event, under the Jordan analytical framework?

[31] During the course of his submissions in this Application, Mr. Wigley argued that the period of time consumed by the Authority's motion to amend the said information between April 12, 2018 and July 23, 2018 (a period of time of 3 months and 12 days), constituted a discrete, exceptional event. In considering this issue, I must ask myself whether the need for the amendment to the information constituted an exceptional circumstance which lay outside of the prosecutor's control. Additionally, I must determine whether the amendment motion was a circumstance which was reasonably unforeseen or reasonably unavoidable and whether the prosecutor could have reasonably remedied the trial delay emanating from that circumstance once it arose.

[32] Furthermore, if I decide that the amendment motion constituted a discrete, exceptional event (i.e. an unexpected event at trial causing delay), it is incumbent on me to determine whether the entire period of delay should be subtracted from the total delay, or, in the alternative what portion of the delay should be subtracted. In order to make that determination, I am obliged to assess whether any portion of the delay occasioned by the unexpected motion could reasonably have been mitigated by the prosecution and the justice system.

ANALYSIS

(i) Issue No. 1 – When does a trial "end" for purposes of assessing whether or not the delay in the completion of the trial exceeds the ceiling for presumptively unreasonable delay, as established by Jordan?

(A) Sub-Issue No. 1 – Whether or not the trial ends at the completion of any potential sentencing proceedings?

[33] In their ground-breaking decision in Jordan at para. 49, Justices Moldaver, Karakatsanis and Brown made, in part, the following observations pertaining to the "new" framework for section 11(b) Applications:

The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. For cases going to trial in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of trial. For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial [footnote 2]. …

[34] In footnote no. 2, the Justices stated as follows:

This Court has held that s. 11(b) applies to sentencing proceedings (R. v. MacDougall, [1998] 3 S.C.R. 45 (S.C.C.)). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no comments about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered or whether additional time should be added to the ceiling in such cases.

[35] Accordingly, the majority of the Supreme Court of Canada in Jordan did not determine whether post-conviction events such as sentencing proceedings should be included in the s. 11(b) calculus for purposes of the application of the Jordan presumptive ceilings, as that issue was not before the Court.

[36] While there have been a number of lower court decisions throughout Canada which have offered competing interpretations of the text of Jordan footnote no. 2, a provincial Court of Appeal has recently provided an opinion as to whether post-verdict proceedings should be included in the Jordan ceilings for presumptively unreasonable delay.

[37] In its decision in Regina v. S.C.W., 2018 BCCA 346, released on September 19, 2018, the British Columbia Court of Appeal concluded that it is the date of conviction which marks the end of the trial for purposes of the Jordan analytical framework for section 11(b) applications, rather than the date of the completion of sentencing proceedings. I am bound by this proposition of law since it was made by a provincial Court of Appeal, relative to federal legislation. Furthermore, it appears to be the only decision of a provincial Court of Appeal which has interpreted the text of footnote no. 2 in Jordan pertaining to the inclusion or exclusion of time-periods related to sentencing, in the context of the Jordan presumptive ceilings.

[38] In Regina v. S.C.W., supra, Madam Justice Fenlon rejected the notion that the time required to complete post-verdict sentencing proceedings are included in the application of the Jordan section 11(b) presumptive ceilings. In that regard, at paragraphs 25 and 26 therein, she stated as follows:

There is some merit to the submission that post-verdict delay should be assessed by asking whether sentencing markedly exceeded the time reasonably required to complete the particular type of sentencing proceeding. However, in my view, assessing the period from charge to sentencing against the presumptive ceilings in Jordan does not accord with the law as it stands. Although the right to be tried within a reasonable time under s. 11(b) of the Charter includes the right to be sentenced within a reasonable time (R. v. MacDougall, [1998] 3 S.C.R. 45 at para. 10), there are a number of reasons why the Jordan framework and presumptive ceilings should not govern an application for delay after conviction is entered, and why pre-and post-conviction delay should be considered discretely.

First, in Jordan the majority limited its analysis to the period between charge and end of trial and explicitly declined to consider how the ceiling should apply to s. 11(b) applications brought after trial in relation to sentencing, saying at footnote 2:

This Court has held that s. 11(b) applies to sentencing proceedings (R. v. MacDougall, [1998] 3 S.C.R. 45). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.

The majority assessed total delay of 49.5 months between charge and conviction – not the time between the charge and sentence which was approximately 53.5 months. Thus the "end of trial" benchmark used in Jordan was the pronouncement of the verdict and not the pronouncement of sentence (Jordan at para. 49). …

[39] As stated above, I am obliged to follow the reasoning of the British Columbia Court of Appeal relative to this sub-issue. I adopt the reasoning of Fenlon J.A. in S.C.W. I conclude for purposes of the application of the Jordan analytical framework, that the trial does not end upon the completion of any potential sentencing proceedings, post-verdict.

(B) Sub-Issue No. 2 – Whether a jurist's reserve or deliberation time prior to rendering a judgment relative to a charge against an accused person should be included as part of the time between the charge and the anticipated end of the trial, in the context of the Jordan ceilings for presumptively unreasonable delay?

[40] In his decision in Regina v. MacIsaac, 2018 ONCA 650, released on July 18, 2018, Huscroft J.A., declined to rule on the issue of whether judgment-reserve time should be included in the calculation of the total delay in the context of the Jordan analytical framework, noting that it was not necessary to resolve that issue for the purposes of the appeal. However in paragraphs 35 to 37 of his decision, Mr. Justice Huscroft made the following comments, as obiter dicta, pertaining to the issue of the inclusion or exclusion of reserve time as part of the calculation of total delay:

Prior to Jordan, the time a judgment was under reserve was typically considered to be part of the inherent time requirements of a case: R. v. Schertzer, 2009 ONCA 742, 255 O.A.C. 45, at para. 114, leave to appeal refused [2010] S.C.C.A. No. 3; e.g. R. v. Lamacchia, 2012 ONSC 2583, at para. 7; R. v. Ferguson (2005), 24 M.V.R. (5th) 47 (Ont. S.C.), at para. 213, leave to appeal refused 2008 ONCA 764, 69 M.V.R. (5th) 18. However, some judicial delays in rendering a decision were considered unreasonable and warranted a stay. Most notably, in R. v. Rahey, [1987] 1 S.C.R. 588, the Supreme Court was unanimous that an 11-month delay to issue a decision on a motion for a directed verdict constituted an infringement of s. 11(b). See also R. v. Milani, 2014 ONCA 536, 120 O.R. (3d) 641, at para. 28, leave to appeal refused [2014] S.C.C.A. No. 426.

The appellant's stay application was heard prior to commencement of the re-trial, and the trial judge used the final day scheduled for the re-trial – February 17, 2017 – as the end date for calculating total delay. As it happened, the trial ended one day earlier than expected and the appellant was not convicted until over two months later – April 18, 2017 – when the judgment was delivered.

Jordan did not address whether the time a judgment is under reserve is included in the calculation of total delay and appears to have left the matter open. On the view that I take it is not necessary to resolve the issue of reserve time for purposes of this case, and I would leave the issue for resolution in a future case, with a fuller evidentiary record and argument.

[41] In a recent decision of the Nova Scotia Court of Appeal, in Regina v. Brown, 2018 NSCA 62, dated July 17, 2018, Derrick J.A. determined that judicial judgment-reserve time should not have been considered in calculating the trial delay in that case. In reaching that decision, Madam Justice Derrick followed certain propositions of law made by Joyal C.J.Q.B. in Regina v. K.G.K., 2017 MBQB 96 and by Slatter J.A. in Regina v. Gambilla (appeal by Mamouni), [2017] ABCA 347, stating at paragraphs 72 to 75, as follows:

Without the 3.5-month deduction, the delay calculation would stand at 21.3 months. There is, however, as the Crown has pointed out, a further relevant factor to be taken into account in assessing the delay in Mr. Brown's case – the time taken by the trial judge to produce his decision on the validity of the search warrant. This was not addressed in the court below but should be on this appeal.

The trial judge adjourned the matter from May 10, 2016 to July 15, 2016 to afford him time to decide the search warrant issue. Jordan was only released on July 8, 2016 and makes no reference to judicial decision-rendering being a factor in the determination of unreasonable delay. Under a Morin analysis, this time would be excluded as part of the inherent time requirements of a case (R. v. K.G.K., 2017 MBQB 96 (Man. Q.B.), at para. 30). That said, an inordinately delayed decision can provide a stand-alone basis for a stay of proceedings (R. v. Rahey, [1987] 1 S.C.R. 588 (S.C.C.)).

Moving past Morin, there are compelling reasons for not including in the section 11(b) analysis under the Jordan framework the time it takes for a judge to render a decision. (See, for example: R. v. K.G.K.; R. v. Mamouni, 2017 ABCA 347 (Alta. C.A.), at paras. 88-93. As Slatter J.A. of the Alberta Court of Appeal has said (concurring in the result):

…The Charter, including s. 11(b) do (sic.) not require a trial judge to rush to judgment or cut corners in rendering a decision. The time it takes for a reserved decision to be rendered is not 'delay' and should not be counted in the s. 11(b) analysis at all… . (Gambilla, at para. 88)

I am satisfied that the two months it took the trial judge to determine the search warrant issue should not be counted in calculating the delay. I find the net delay in Mr. Brown's case to have been only 19.3 months.

[42] Furthermore, in his decision in Regina v. K.G.K., supra, Joyal C.J.Q.B. determined that judicial delay, "as represented by judicial reserve time" should not be included as part of the time measure against the Jordan presumptive ceilings for unreasonable delay. At paragraph 60 of his decision, Chief Justice Joyal (Manitoba Court of Queen's Bench) summarized the reasons for his decision in this regard as follows:

To summarize, judicial delay should not be assessed and accounted for by including it under the new Jordan framework and measuring it against the stark and associated presumptive ceilings. Not only does the Jordan framework not provide a mechanism for adequately balancing and reconciling the relevant constitutional principles at play, the framework – if applied to judicial delay – would give rise to practical problems that would have the paradoxical effect of compromising much of the predictable and certain efficiency and accountability that Jordan was attempting to bring. …

[43] Finally, in his s. 11(b) ruling in Regina v. Colpitts, 2018 NSSC 41 dated March 9, 2018, Coady J. found that the subject trial ended when the parties completed the presentation of their respective evidence and legal argument, and not when he delivered his judgment following a period of reserve-time. In that regard, at para. 64 of his judgment, the said jurist stated, in part, as follows:

The law appears unsettled as to the meaning of the phrase 'to the actual or anticipated end of trial'. I take the view that this trial ended on November 7, 2017, and not when I render my decision on March 9, 2018.

[44] In light of the fact that Jordan did not address the issue of whether the time that a judgment is under reserve is included in the calculation of the total delay, in terms of the application of the presumptive ceiling, I am of the view that I am bound by the two provincial Court of Appeal decisions relative to that issue in Regina v. Brown, supra, and Regina v. Gambilla, supra. In particular, in respect of the specific issue of the inclusion of judicial deliberation time in the Jordan subsection 11(b) calculus, I am obliged to follow the unanimous decision of the Nova Scotia Court of Appeal in Regina v. Brown, which determines that such judicial deliberation time is not included in the calculus.

[45] I therefore, find that the "end of the trial" for purposes of the Jordan analytical framework, is the date of the verdict. However, any judicial reserve-time between the date of the completion of trial evidence and submissions and the date of the delivery of the verdict and reasons therefor, is not included in the total amount of delay for purposes of the application of the Jordan 18 or 30-month ceilings for presumptively unreasonable trial delay.

[46] In the case at bar, the parties completed tendering their final legal submissions on November 26, 2018. I then reserved judgment on the trial proper and adjourned the proceedings to the next scheduled date of December 10, 2018, for the delivery of my judgment on this Charter Application.

[47] In light of my determinations pertaining to the issue as to when a trial is "anticipated" to end, I am of the view that this trial "actually" ended on November 26, 2018, when Mr. Klaiman completed his final reply submissions.

[48] Furthermore, in light of the findings articulated in my first subsection 11(b) decision dated December 6, 2017, cited above, I find that the total delay in the completion of the trial in these proceedings is properly calculated from the date of release of Jordan on July 8, 2016 to the actual end of the trial on November 26, 2018. Therefore, the total period of delay in the trial of the charges against the corporate defendants named in information no. 13-7247 and in the trial of the charges against EarthCo Soil Mixtures Inc. in information no. 14-7592, is 28 months and 18 days.

Issue No. 2 – Does the Authority's motion to amend information number 13-7247, as against 2163832 Ontario Inc. constitute a discrete, exceptional event so as to justify the trial delay occasioned by that event, under the Jordan analytical framework?

[49] The majority in Jordan, at para. 69, defined exceptional circumstances as circumstances which "lie outside of the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise".

[50] The concept of "discrete, exceptional events which arise at trial" was discussed by the majority in Jordan, in paras. 73, 74 and 75, as follows:

Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected – even where the parties have made a good faith effort to establish realistic time estimates – then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, it exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.

The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purposes of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from the discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26 (S.C.C.)). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e., it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).

[51] As stated above, Mr. Wigley, argues that his motion to amend the charges against 2163832 Ontario Inc., causing a delay in the progress of the trial proceedings during the period between April 12, 2018 and July 23, 2018, constituted a discrete, exceptional event. He submits that the period of 3 months and 11 days should, therefore, be deducted from the net trial delay for purposes of determining whether the 18-month presumptive ceiling for unreasonable delay has been exceeded.

[52] In considering all of the evidence before me, I am of the view that the subject amendment motion constituted a substantive step which the prosecutor needed to take in order to adequately respond to a reasonably unforeseen circumstance, over which he had no control.

[53] In my view, it is not reasonable to conclude that Mr. Wigley could have anticipated the nature and significance of the evidence of defence witness David Snyder, prior to the time of his testimony on February 27, 2018. Mr. Wigley argued that he only became aware of the importance of Mr. Snyder's testimony after Mr. Klaiman had made his final submissions on behalf of the corporate defendants in this proceeding, on March 5 and March 6, 2018. It was at that time that Mr. Klaiman proffered what Mr. Wigley described as a unique and unexpected argument that during the period when the defendants undertook a development on the subject lands, the lands did not contain a wetland, as the alleged wetland had been destroyed by Mr. Snyder's farming activities between May 2011 and August 2012.

[54] I accept Mr. Wigley's argument that the defence put forward by the corporate defendants, that the alleged wetland on the subject lands had been destroyed by Mr. Snyder's farming activities prior to the time that they engaged in development activities on the lands in August and September of 2012, was an unforeseen and unpredictable event which happened near the end of the trial. It is, therefore, understandable that the prosecution needed to modify its case in these proceedings, so as to expand the date range of the charges against 2163832 Ontario Inc. to address that corporation's role in permitting Mr. Snyder to engage in impermissible farming activities on its lands prior to August 28, 2012, thereby interfering with the alleged wetland and/or watercourse on the lands.

[55] In light of Mr. Snyder's evidence and Mr. Klaiman's associated legal arguments, the prosecution decided that it needed to seek an amendment to all of the charges against 2163832 Ontario Inc. in order to conform to that evidence. Mr. Wigley had little control over this process, since the granting of the amendment required a court order, in the context of an adversarial proceeding. He could not, therefore, reasonably remedy the trial delay emanating from the proposed amendment motion, which was necessitated by Mr. Klaiman's unusual legal argument and Mr. Snyder's unexpected evidence.

[56] For these reasons, I conclude that the step taken by the prosecution to seek to amend the date range for all of the charges against 2163832 Ontario Inc. so as to conform to Mr. Snyder's evidence, constituted a discrete, exceptional event in the context of the Jordan analytical framework. The continuation of the subject trial was suspended during the period when the motion to amend was argued until I rendered my ruling on July 23, 2018; a period of 3 months and 11 days. Some of the trial delay occasioned by this exceptional circumstance will be deducted from the net delay for purposes of the application of the Jordan subsection 11(b) calculus. I must now determine the quantum of time which should be deducted on account of the delay associated with this amendment motion, as a discrete, exceptional circumstance.

[57] In this regard, I am mindful of the comments of the majority in Jordan that the Crown and the justice system "must always be prepared to mitigate the delay resulting from a discrete, exceptional circumstance". In considering whether the prosecution and the justice system had acted diligently to mitigate the delay associated with the subject motion to amend the information against 2163832 Ontario Inc., I have considered the following factors:

1. that at the outset of his final legal submissions during the afternoon of March 6, 2018, Mr. Wigley was aware of the defence proffered by the corporate defendants that the alleged wetland on the subject lands had been destroyed by Mr. Snyder's farming activities prior to August 28, 2012;

2. that Mr. Wigley did not raise the issue of the subject amendment motion with either the corporate defendants or the Court until 3:38 p.m. on April 12, 2018, when he verbally requested the amendment;

3. that Mr. Wigley was not able to secure adequate court time to argue the amendment motion at any time between April 12, 2018 and the scheduled trial continuation date of June 11, 2018;

4. that Mr. Wigley did not serve a Notice of Motion seeking the amendments, made pursuant to the P.O.A. Rules of Procedure, upon Mr. Klaiman, until after May 25, 2018, when Mr. Wigley formally designated June 11, 2018 as the date to argue the contested motion;

5. that the subject motion was argued on the scheduled trial continuation dates of June 11, 2018 and July 9, 2018;

6. that my oral judgment on the motion was delivered on July 23, 2018.

[58] I am of the view that based on the factors listed above, the prosecution failed to take reasonable steps to mitigate the delay occasioned by amendment motion during the period between March 6, 2018 and April 12, 2018, as it did not, during that time frame, prepare and serve a Notice of Motion on the corporate defendants formally constituting the motion for April 12, 2018 at 1:30 p.m. Moreover, even though Mr. Wigley verbally sought to amend some of the charges against 2163832 Ontario Inc. on April 12, 2018, he did not do so until 3:38 p.m. when it was too late in the day to properly adjudicate the issue.

[59] It is noted, however, that the prosecution is not seeking to justify the trial delay during the period between March 6, 2018 and April 12, 2018, on the basis of the amendment motion being an exceptional circumstance. According to his "Memorandum of Argument" dated October 17, 2018, Mr. Wigley submits that the period of trial delay between April 12, 2018 and July 23, 2018 (a period of 3 months and 11 days) should be deducted from the net trial delay for purposes of the application of the Jordan presumptive ceiling for unreasonable delay.

[60] It is, in my view, appropriate to deduct the period of trial delay between the commencement of submissions relating to the prosecutor's formal motion to amend, on June 11, 2018 to the time of my judgment on July 23, 2018 (a period of 1 month and 12 days) as a discrete, exceptional event. It is clear that during this period of time, both the prosecution and the justice system exercised diligence to ensure court availability for purposes of accommodating the completion of the motion within a reasonable time.

[61] On the other hand, it would appear that the delay in the completion of this motion between April 12, 2018 and June 11, 2018; a period of 1 month and 29 days, was attributable to systemic factors. In that regard, on April 12, 2018, Mr. Wigley advised that he would attempt to find court time on a "motion or first appearance day" in the Burlington P.O.A. court for purposes of arguing the amendment motion. It would appear, however, that he was not able to find any available dates to argue the motion between April 12, 2018 and June 11, 2018. The inability of the justice system to accommodate the completion of the motion during the period between April 12, 2018 and June 11, 2018 is, therefore, properly characterized as systemic delay. That form of delay is not justifiable under the Jordan analytical framework.

[62] This scenario is similar to the circumstances analyzed by the Supreme Court of Canada in Cody, where the Court only deducted 3 months of the 5-month delay associated with a "McNeil disclosure application, discrete event". In considering the issue of the scope of the duty placed on both the Crown and the justice system to mitigate trial delay associated with a discrete, exceptional circumstance, the Court made the following comments (at paragraphs 53 to 55):

The next disputed period is the five months of delay flowing from the McNeil disclosure issue that came to light on May 3, 2013, on the eve of the defence's scheduled Charter application to exclude.

We agree with the Crown that the emergence of this new disclosure obligation qualified as a discrete event, and would deduct a portion of the delay that followed. It was reasonably unavoidable and unforeseeable, and the Crown acted responsibly in making prompt disclosure, following up as the matter proceeded, and seeking the next earliest available dates. The Crown may have been able to take additional steps, such as disavowing any reliance on the officer's evidence or tendering it through an agreed statement of facts. However, the requirement is that of reasonableness: the Crown need not exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement.

That said, we would not deduct the entire five months for this event. Two months, specifically the time it took for the Crown and defence to be prepared to proceed (until late 2013) should be deducted. However, the court was unable to accommodate them until September – that portion of delay was therefore a product of systemic limitations in the court system and not of the discrete event (Jordan at para. 81) and therefore those months should not be deducted. Then because defence counsel was unavailable in September, the matter was put over until October 2013. As this one month of delay was caused by defence counsel's unavailability (Jordan, at para. 64), not by preparation time to respond to the charges (Jordan, at para. 65), it should be deducted.

[63] In conclusion, I find that the Authority's motion to amend the charges against 2163832 Ontario Inc., argued before me between June 11, 2018 and July 23, 2018, constitutes a discrete, exceptional event for purposes of the application of the Jordan 18-month presumptive ceiling for unreasonable trial delay. That period of trial delay; 1 month and 12 days, is properly deductible from the net delay in these proceedings.

[64] On the other hand, in light of the justice system's failure to adequately mitigate the trial delay between April 12, 2018 and June 11, 2018 (a period of 1 month and 29 days), that portion of the trial delay related to the amendment motion, attributable to systemic limitations, may not be subtracted from the net delay in the context of the Jordan framework.

CONCLUSION

[65] I will now summarize my findings in both my first subsection 11(b) decision in Halton Region Conservation Authority v. Ahmad, [2017] O.J. No. 6678; 2017 ONCJ 858, dated December 6, 2017 and this my second subsection 11(b) decision, in the context of the Jordan analytical framework. The findings in my second decision relate only to the charges against the corporate defendants named in informations nos. 13-7247 and 14-7592. Furthermore, the second decision relates only to the circumstances of the trial of those charges in the post-Jordan era, as the pre-Jordan trial delay has been justified through the application of the "transitional exceptional circumstance", discussed in my first decision.

The Jordan Analytical Framework

(i) Informations nos. 13-7247 and 14-7592

(A) Total Delay

[66] As I stated in my first decision, the subsection 11(b) clock for the corporate defendants named in the said informations commenced with the release of Jordan on July 8, 2016. The trial of all charges against the corporate defendants actually ended on November 26, 2018. The total delay in the completion of the trial of all charges against the corporate defendants is, therefore, 28 months and 18 days.

(B) Defence Delay

(i) Waiver

[67] The corporate defendants expressly waived their rights under subsection 11(b) of the Charter, between April 4, 2017 and August 1, 2017; a period of 3 months and 27 days.

(ii) Delay Caused by Defence Conduct

[68] In my first decision, at paragraph 41, I noted that in Jordan (at para. 64), the majority endorsed the concept that deductible defence delay includes the scenario where "the court and the Crown are ready to proceed but the defence is not". The majority then stated that "the period of delay" resulting from the unavailability of the defence "will be attributed to the defence".

[69] At paragraph 54 of my first decision, I itemized various dates, between July 11, 2016 and January 23, 2018, when court resources were available for trial continuation, which were also available to the prosecutor and to myself, but were not available to Mr. Klaiman. Based upon that itemization, I determined that the total period of delay caused by the conduct of the corporate defendants (relative to defence counsel unavailability) from the time of the release of Jordan on July 8, 2016 to January 23, 2018, was 3 months and 28 days.

[70] In my view, since the time of the release of my first decision on December 6, 2017, there have been only two periods of delay attributable to the category of delay caused by defence conduct. Those two periods of time relate to the unavailability of defence counsel for purposes of trial continuation.

[71] Mr. Klaiman was not available on the following trial dates offered by the court administration, which were available to both Mr. Wigley and myself:

1. August 3, 2018 – delay to August 20, 2018 is 17 days;
2. August 27, 2018 – delay to September 10, 2018 is 13 days.

[72] The delay attributable to the conduct of the corporate defendants over the period between January 23, 2018 and the actual end of the trial of these proceedings on November 26, 2018 is, therefore, 30 days or 1 month.

[73] In summary, the delay caused by defence conduct during the period between July 8, 2016 and January 23, 2018 is 3 months and 28 days. Further, the delay caused by defence conduct during the period between January 23, 2018 and November 26, 2018 is 1 month. Therefore, the total period of delay caused by defence conduct is 4 months and 28 days.

(iii) Summary of Defence Delay

[74] The total period of delay attributable to the category of waiver is 3 months and 27 days.

[75] The total period of delay attributable to the category of delay caused by defence conduct is 4 months and 28 days.

[76] The total defence delay is, therefore, a period of 8 months and 25 days.

(C) Net Delay

[77] The Jordan analytical framework requires the deduction of defence delay from the total delay, to determine the net delay. As I stated in paragraph 66 of my first decision, if the net delay exceeds the presumptive ceiling for cases going to trial in the provincial court; that of 18 months, then the delay is presumptively unreasonable. According to Jordan (at para. 47), "[t]o rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow". On the other hand, if the net delay or "a period of delay attributable to exceptional circumstances falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable" (Jordan at para. 48).

[78] The total delay in the prosecution of all of the charges against the corporate defendants in these proceedings is 28 months and 18 days. When one subtracts the defence delay of 8 months and 25 days from the total delay, the net delay is equal to 19 months and 23 days.

[79] The period of net delay for all of the charges against the corporate defendants exceeds the 18-month presumptive ceiling. The delay is, therefore, presumptively unreasonable. This presumption may be rebutted if the prosecution is able to establish the existence of exceptional circumstances to justify the extent of the unreasonable delay.

(D) Remaining Delay

[80] The Jordan majority, at paragraph 71, generally categorized exceptional circumstances as being "discrete events" and/or "particularly complex cases". The majority went on to state that "the period of delay caused by any discrete exceptional events" must be subtracted from the period of net delay, to determine the "remaining delay" (Jordan at paras. 67, 75 and 76). In fact at paragraph 76, the majority advised that if the "remaining delay falls below the ceiling, the accused may still demonstrate in clear cases that the delay is unreasonable…", but went on to state that if "the remaining delay exceeds the ceiling, the delay is unreasonable and a stay of proceedings must be entered".

[81] The Jordan majority did, however, establish the principle that if a trial judge finds that the case is "particularly complex such that the time that the case has taken is justified", then "the delay is reasonable and no stay will issue" (para. 80). Furthermore, the majority in Jordan (para. 96) and the unanimous Court in Cody (para. 67) recognized that for those cases already in the system at the time of the release of Jordan, any remaining delay in excess of the presumptive ceiling could be justified through the application of the "transitional exceptional circumstance".

[82] In my first decision at paragraphs 71 and 72, I found that the delay in these trial proceedings caused by the illness of prosecution witness, Watershed Enforcement Officer Nathan Murray, on December 5, 2016, "qualified as a discrete, exceptional event". As a result of the officer's illness, the subject proceedings were adjourned to the next scheduled trial date of December 12, 2016 for continuation. The period of delay caused by this discrete, exceptional event; from December 5, 2016 to December 12, 2016, is 7 days. That period of time should be deducted from the net delay in order to determine the remaining delay.

[83] Additionally, as stated above, I have characterized the 1 month and 12 day period of trial delay between June 11, 2018 and July 23, 2018, associated with the presentation and argument of the prosecution's amendment motion, as a discrete, exceptional event. That period of time should also be deducted from the net delay to determine the remaining delay.

[84] The net delay in the trial of the all of the charges against the corporate defendants is 19 months and 23 days. The total delay caused by the 2 discrete, exceptional events identified above is 1 month and 19 days. Therefore, the remaining delay in the trial of the charges is 18 months and 4 days.

[85] The remaining trial delay exceeds the 18-month ceiling for presumptively unreasonable delay. As stated in paragraph 11 herein; in my first subsection 11(b) decision (at paras. 79 to 87), I decided that given the overall complexity of the subject proceedings, the case against all of the defendants could not be considered to be "particularly complex" so as to rebut the presumption of unreasonableness relative to the remaining trial delay and thereby justify the overall delay. Furthermore, as stated above, the "transitional exceptional circumstance" is not relevant to the issues in this second subsection 11(b) Application, as this Application pertains to the delay of the trial of the charges against the corporate defendants since the date of the release of Jordan on July 8, 2016.

[86] The remaining delay in the trial of the charges against the corporate defendants, as analyzed above, exceeds the 18-month ceiling. The delay is presumptively unreasonable and that presumption has not been rebutted by application of the "particularly complex case exceptional circumstance". The corporate defendants have, therefore, established that their right to be tried of the subject offences within a reasonable time under subsection 11(b) of the Charter has been infringed. This infringement will be remedied by the entry of a stay of the subject proceedings against those defendants, under the authority of subsection 24(1) of the Charter, Jordan at para. 76 and Cody at para. 24.

THE DECISION

[87] The rights of the corporate defendants in these consolidated proceedings under subsection 11(b) of the Charter have been infringed. Accordingly, the charges against Benji Transport Inc., Brock Aggregates Inc., Dancar Haulage Corporation, Dilligaf Logistics Ltd., EarthCo Soil Mixtures Inc., G & L Group Ltd., Gambrah Trucking Co., Heavy Weight Trucking Inc., Hours Trucking Company, Jas Deol Trucking Inc., Jeorge Campoverde Haulage Ltd., Tylors Trucking Services Inc., 1167877 Ontario Inc., 1191669 Ontario Inc., 1688543 Ontario Inc., 1770195 Ontario Inc., 2163832 Ontario Inc. and 6282121 Canada Inc. under information no. 13-7247 and the charges against EarthCo Soil Mixtures Inc. under information number 14-7592, are stayed pursuant to subsection 24(1) of the Charter.

Released: December 10, 2018

Signed: "Justice of the Peace Kenneth W. Dechert"