ONTARIO COURT OF JUSTICE

Date: 2020-01-30

Court File No.: Ottawa 17RF1004

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

PETER CHARLES CROTEAU

Section 11(b) Application

Before: Justice P.K. Doody

Heard on: January 7, 2020

Reasons for Decision released on: January 30, 2020

Counsel:

R. Sonley — counsel for the Crown

A. Paciocco — counsel for the defendant

DOODY J.:

Part 1: Context and Issues

[1] The defendant Peter Croteau was charged with 5 offences under the Controlled Drugs and Substances Act and 1 count of possession of currency knowing it to have been obtained by the commission of an indictable offence. The trial of those charges, and the hearing of a motion to stay the proceedings on the basis of an alleged breach of s. 11(b) of the Charter, were scheduled to begin on January 7, 2019.

[2] On January 2, 2019, the defendant entered a plea of guilty to two counts – one of conspiracy to traffic in marijuana of an undisclosed amount, and one of trafficking in marijuana under 3 kilograms.

[3] After the guilty pleas were entered, an Agreed Statement of Facts was entered. Mr. Croteau did not admit, in that document, that the amount of marijuana which he had conspired to traffic was over 3 kilograms. It was silent as to the quantity of marijuana which was the subject of the conspiracy. I found Mr. Croteau guilty of those two counts. I ordered a pre-sentence report, with the consent of both the Crown and defence. Because the pre-sentence report would take some time, the matter was adjourned to March 21, 2019 for sentencing submissions.

[4] On March 20, 2019, the day before sentencing submissions were to be made, Crown counsel advised defence counsel that if Mr. Croteau did not admit that the amount of marijuana he had conspired to traffic was over 3 kilograms, she would seek to lead evidence of that fact in a Gardiner hearing.

[5] The defence was not prepared to admit that fact. The Crown sought to prove it.

[6] The issue of whether the Crown could lead evidence in a Gardiner hearing was argued before me on June 18, 2019.

[7] On July 31, 2019, I released a written decision in which I held that, considered objectively, the Crown and the defence entered into an agreement that Mr. Croteau would plead guilty to these two counts, abandoning his right to a trial and his right to apply for a determination of whether his right to a trial within a reasonable time had been infringed, and in return the Crown agreed that the facts relied upon for the sentencing would be the facts set out in the Agreed Statement of Facts.

[8] On October 21, 2019, I heard further submissions on the issue of whether the decision of the Supreme Court of Canada in R. v. Nixon, 2011 SCC 34 (which had not been raised by either counsel) affected the issue of whether, despite the agreement I had found, the Crown was entitled to lead evidence on a Gardiner hearing and whether, if so, the defendant was entitled to have his plea of guilty struck out. The next day, October 22, I issued my decision with written reasons holding that the Crown was not entitled to lead further evidence.

[9] I made a number of rulings and factual findings in both my July 31 decision and my October 21 decision which are relevant to the issues now before me. I will not repeat them in detail. A review of those decisions is necessary to fully understand this decision.

[10] On September 19, while these proceedings were ongoing, the Court of Appeal released its decision in R. v. Charley, 2019 ONCA 726, in which the court held that the presumptive limit on post-verdict delay, for the purposes of s. 11(b) of the Charter of Rights, was 5 months. On September 26, defence counsel filed a Notice of Application seeking, in addition to his alternative application seeking to have his plea of guilty struck out, a stay of proceedings as a result of an alleged breach of s. 11(b) after he had entered his guilty plea on January 2, 2019. That issue, and the issue of the appropriate sentence, were argued on January 7, 2020.

[11] The issues are:

(a) whether s. 11(b) has been breached and, if so, the appropriate remedy; and

(b) the appropriate sentence.

Part 2: Chronology

January 16, 2017

[12] The information is sworn.

January 2, 2019

[13] Mr. Croteau pleaded guilty to trafficking in marijuana under 3 kilograms and conspiring to traffic in marijuana with the quantity not particularized. An Agreed Statement of Facts was entered, I made a finding of guilt and ordered a pre-sentence report.

[14] Defence counsel estimated that a half hour of court time would be needed for sentencing. Crown counsel suggested erring on the side of caution and suggested an hour. Sentencing was set for March 21, 2019, because a pre-sentence report is not normally available until approximately 10 weeks has elapsed. An hour of court time was set aside, commencing at 9:00 am, to be completed before the commencement of the normal trial court at 10:00 am.

March 21, 2019

[15] Counsel advise that a "matter had arisen" and make a joint application to adjourn the matter to March 29, 2019 to be spoken to. Defence counsel waived s. 11(b) in the interim.

March 29, 2019

[16] Crown counsel advised that he would be making an application to call evidence to establish the quantum of marijuana involved in the conspiracy. Defence counsel sought an adjournment to allow the defendant to obtain independent legal advice. I held that that request was reasonable in the circumstances, and that the issue of the Crown application to call further evidence should be dealt with after the defendant had obtained that independent advice. The matter was adjourned to April 9 to be spoken to. Defence counsel advised that he would not be waiving s. 11(b) for any further adjournments.

April 9, 2019

[17] Defence counsel advised that Mr. Croteau had obtained independent legal advice and he would be remaining as counsel. Crown counsel repeated her earlier statement that she would be filing an application to call further evidence on sentencing. She also said that if the Crown was permitted to call further evidence, 3 days would be required to hear that evidence. Defence counsel said:

While I'm always reluctant .. to proceed in a bifurcated fashion, in the event the Crown's application to even call additional evidence is granted it may lead to a defence bringing additional applications. So I'm content setting four days but I think there should be, in my respectful submission, a substantial break, or, at least, a meaningful break between the argument for if the Crown can call additional evidence and then the calling of that evidence, because depending on Your Honour's ruling it may inform next steps for the defence.

[18] Counsel agreed that submissions restricted to the issue of whether the Crown would be entitled to call further evidence could be dealt with in an hour of court time. I disagreed, and said that at least a half day would be required for that issue, and that that time should be reserved, with a further three days to be set at the same time. I told counsel that I was commencing a lengthy trial the following week, and that I did not believe that I had a free half day until September. I also said that that half day should be booked at the same time as three days for the hearing of the evidence, so as to not be further behind once the preliminary issue was decided. I suggested that a judicial pre-trial occur to see if the issue could be resolved, and adjourned the case until April 15 to set a date.

April 15, 2019

[19] Counsel advised that they had had a judicial pre-trial on April 12 and had been unable to resolve the issue. July 12 at 2 p.m. was the first available half day before me to argue the issue of whether the Crown was entitled to call further evidence. I directed that the Crown file its application to call further evidence by April 29, with the parties to appear before me on May 3 to discuss scheduling issues related to the July 12 hearing.

[20] I raised with counsel the issue of setting at that time a further three days for the Crown to call further sentencing evidence should I rule that it was allowed to do so. Crown counsel advised that if the Crown was permitted to call further evidence there would be a defence application which would intervene. Defence counsel said:

I had flagged this for your Honour. I'll need to take final instructions. It was optimistic last week following the pre-trial this might be resolved and clearly, uh, it's not. So it's a very distinct possibility. I'll even say it's likely. The only reason your Honour (indescirnible) this phase is I need to take instructions from the client, final instructions, but I suspect it's an application will follow in the event the Crown's successful. That application will not follow with, for sentencing, on the basis of the exhibits and the information already before your Honour, but it may be necessary, if the Crown's granted permission to call additional evidence. It would happen before that evidence is called.

[21] I asked defence counsel whether what he was considering was a Charter application "or something of that ilk" and he responded "something of that ilk, I guess." I directed counsel to attend at the trial coordinator's office to find three days to hear the Crown evidence, and that 3 further days would be set at the next appearance on May 3.

April 26, 2019

[22] Crown counsel filed a Notice of Application to call further evidence along with a factum. No evidence was filed in support. He submitted in his factum:

in the event that the court feels that as a result of the failure to include such facts in agreed statement and that he was not advised by his counsel that the court would not be limited to such facts at the time of his sentencing, that the respondent was misled, such that the decision to enter pleas of guilt was not an informed one, then the appropriate remedy is to strike the pleas of guilt and set all matters relating to the accused for trial.

May 3, 2019

[23] Crown counsel advised that he was now unavailable on July 12, the date set to hear the Gardiner application, and asked that that hearing be brought forward to June 27, which had now become available. Defence counsel advised that he would not be filing evidence on the Gardiner application. I told counsel that there was a factual issue – whether an agreement had been reached between the parties – and that factual issues normally require evidence. Crown counsel advised that if defence counsel filed evidence he would be filing evidence in response. I said that if evidence was filed two hours would not suffice to hear the Gardiner application because, among other things, cross-examination may be required. The case was set over to May 9 to be spoken to with defence materials, if any, to be served by May 8. June 27 was reserved for the Gardiner hearing with the understanding that it would be rescheduled if more than 2 hours was required.

May 9, 2019

[24] Defence counsel filed a Responding Application Record for the Gardiner hearing application. It included an affidavit of his law clerk attaching emails between defence counsel and Crown counsel on the issue of the negotiation for and reaching of an agreement on the Agreed Statement of Facts. He submitted in his factum:

To grant the Crown's application to tender additional evidence at the sentencing hearing now, despite no suggestion to the defence or on any Court record it would do so before, would, the Respondent submits, almost guarantee that these charges will ultimately be stayed when the Respondent inevitably renews his s. 11(b) application later.

[25] The matter was set over to May 15, 2019 to determine further steps and timing.

May 14, 2019

[26] Crown counsel filed an affidavit from Crown counsel who had negotiated the Agreed Statement of Facts.

May 15, 2019

[27] I told the parties that the process needed to be put on a firm footing to not waste court time or the parties' time. I said that, in my view, the following issues arose on the material filed:

(a) whether an agreement was reached, implicitly or explicitly, whereby the defence would enter a plea of guilty in return for an agreement that the facts on the plea would be limited to those in the written agreed statement of facts;

(b) in the alternative, whether the Crown was estopped from introducing new facts (which may be subsumed in the first issue);

(c) whether the evidence that was tendered by defence on the Gardiner application was admissible;

(d) whether, if an agreement had been reached or the Crown was estopped, the only remedy was to strike the plea and proceed to trial; and

(e) the relevance of s. 11(b).

[28] I asked defence counsel, with respect to the s. 11(b) point, whether he would be filing more evidence and whether he would be bringing a s. 11(b) application now in the event that the ultimate decision was to strike the plea, saying that my preference was to have as many issues decided at once as possible.

[29] Defence counsel said:

The other issue, of course, would be in the event that your Honour finds that agreement was not reached and allows the Crown its first remedy sought, that is to call more evidence, can I then strike to – can the defence then apply to strike the plea and … I just want it sort of clear, the defence can apply, the case law is crystal clear on this, to strike a plea at any time before sentence is imposed, so it may at the end of the day be your Honour making a determination about striking a plea or not.

[30] Defence counsel also said that he did not "at this stage" intend to file more evidence but he would like to reserve on that issue.

[31] Defence counsel said that it would be premature to bring a s. 11(b) application now because there was no anticipated end date of trial, and that date would be determined by the ruling I was being asked to make on the Crown's Gardiner application. He also asked that I rule whether all or part of the evidence he had tendered on that application was admissible before deciding whether to file further evidence.

[32] I said:

I want to have all the evidence in front of me before – I don't want to make a ruling about what kind of evidence is admissible and then have more evidence be tendered and another fight over whether that evidence is admissible. I'm telling you that is the world of civil litigation; it leads to never-ending motions and it's completely contrary to the principles set out in Jordan and Cody. So I want the entire evidentiary record to be ready and filed by a certain date so that everybody knows what it is before the hearing date, and on the hearing date we will argue admissibility: what's admissible, what is not admissible, and remedies. We're not going to have a bifurcated or trifurcated hearing of this motion. It's just not going to happen.

[33] I decided that the two hours set aside on June 27 would not suffice to deal with the necessary issues. I asked that counsel attend at trial coordination and determine the first available full day before me. They did so and advised that the dates of October 7 to 11 and 14 to 18 were available but Crown counsel was not. The date of October 21 was set as the first available full day before me. That date was reserved. I ordered that any further defence evidence was to be served by June 10, and that the parties appear before me on June 17 to determine whether it could be dealt with earlier.

June 17, 2019

[34] Counsel advised that no further evidence would be filed. The matter was adjourned to the following day, June 18, to be heard, that date having come available since the last appearance on May 15.

June 18, 2019

[35] The Gardiner application was heard. Defence counsel did not, at that time, ask that the defendant's guilty plea be struck in the event that the Crown application was allowed. I reserved my decision until July 31. I advised counsel that I was required to make significant rulings that had not yet been argued in an ongoing lengthy trial and that, consequently, I would be unable to make my ruling on the Gardiner application before then.

June 19, 2019

[36] Crown counsel wrote me, copying defence counsel, providing further submissions on an issue I had asked him about during oral submissions the previous day.

June 27, 2019

[37] Counsel appeared before me in the absence of the defendant to deal with the issue of Crown counsel's letter of June 19. Defence counsel sought a date to argue the issue of whether Crown counsel had acted inappropriately by writing the letter without seeking the permission of defence. I asked him why we could not deal with the issue that day. He told me that had intended that the matter only be spoken to "organize potentially substantive dates to make submissions for half an hour in the … event so that I can respond with Mr. Croteau present." I offered to deal with it the next day. Crown counsel advised he was unavailable until July 15. The matter was set over to July 15 to deal with that issue.

July 15, 2019

[38] I heard submissions on the issue of Crown counsel's letter of June 18. I held that it was improper for Crown counsel to write directly to me without first seeking consent from defence counsel or, in the absence of consent, seeking leave from me on notice to the defence. I ruled that I would consider Crown counsel's submissions along with defence counsel's submissions on the point addressed in the correspondence from the Crown.

July 31, 2019

[39] I released my decision in which I held:

(a) some of the evidence filed by the defence was inadmissible; and

(b) considered objectively, there was an agreement that Mr. Croteau would plead guilty to the two counts, abandoning his right to a trial and his right to apply for a determination of whether his right to a trial within a reasonable time had been infringed, and in return the Crown agreed that the facts relied upon for the sentencing would be the facts set out in the Agreed Statement of Facts.

[40] I said in my decision that I had considered the decision of the Supreme Court of Canada in R. v. Nixon, 2011 SCC 34, which had not been referred to by either counsel, and had concluded that it may be relevant on the issue of whether the Crown may lead evidence on a Gardiner hearing even though it had implicitly agreed that it would not do so. I said that I wanted to hear counsel on that point, and that I wanted to hear defence counsel on the issue of whether Mr. Croteau wanted his plea of guilty to be struck. I asked counsel to obtain an appointment before me to hear submissions on these points, and wrote that if defence counsel chose to not apply then to have the Court strike his plea, I would not permit a future application on the basis of the matters then before me.

[41] Counsel advised that October 21, which had been previously set to hear submissions on the Crown application and abandoned when June 18 became available, was still available. The only earlier day I was available was October 8, but Crown counsel was unavailable. I set October 21 as the date for the further hearing. That date was reserved. I ordered that any defence application to strike the guilty plea, and evidence and factum in support, had to be filed by September 25, 2019 with Crown response to be served by October 16, 2019.

September 19, 2019

[42] The Court of Appeal released its decision in Charley, holding that post-verdict delay beyond 5 months presumptively breached s. 11(b), subject to the exceptions established in R. v. Jordan, 2016 SCC 27.

September 24, 2019

[43] Defence counsel ordered transcripts of appearances to support a s. 11(b) application based on post-verdict delay.

September 25, 2019

[44] Defence counsel served an Application Record containing a Notice of Application seeking:

(a) a stay of proceedings on the basis that his right to be sentenced within a reasonable time had been infringed, and, in the alternative,

(b) an order that the Crown be prevented from leading any evidence of the amount of marijuana which the defendant conspired to traffic; and, in the further alternative,

(c) an order allowing him to withdraw his guilty pleas.

[45] The Application Record also included an affidavit of Mr. Croteau dealing with his alternative application to strike his guilty pleas and a factum dealing only with the last two issues (including the effect of R. v. Nixon). It contained no evidence in support of the 11(b) issue.

September 29, 2019

[46] Defence counsel received the transcripts.

October 11, 2019

[47] Defence counsel served a supplementary Application Record containing, among other things, an affidavit of Mr. Croteau dealing with the prejudice suffered by him as a result of the delay in his sentencing.

October 16, 2019

[48] Defence counsel served a 76 page factum in support of his client's s. 11(b) application. It did not deal with the issue of appropriate remedy, even though the Court of Appeal had, in Charley, expressly left open the issue of whether the only remedy for a post-verdict breach of s. 11(b) was a stay of proceedings.

[49] Crown counsel served a factum dealing with the effect of Nixon on the Gardiner application and the defendant's alternative application to strike his plea, along with a letter stating "in light of the late delivery of the Applicant's materials, the voluminous nature of the materials, and the fact that the October 21st date was set aside for the purposes of the R. v. Nixon arguments and Application to Strike Plea only, the Crown has not addressed the 11(b) argument". Crown counsel proposed that timelines be set on October 21 for the filing of responding materials and the hearing of the s. 11(b) Application.

October 21, 2019

[50] Submissions were made on the Nixon issue and the defendant's alternative application to strike the plea.

October 22, 2019

[51] I released my decision, ruling that the Crown is not permitted to lead evidence to establish additional facts on the sentencing hearing, and that the defendant's application to strike the plea, having been brought in the alternative, need not be dealt with. I advised that I would convene court at the first reasonable opportunity to determine the next steps, writing "I urge both parties to expeditiously consider the most efficient way to move forward."

October 30, 2019

[52] The parties appeared before me. I said that I wanted submissions from defence counsel, in writing, on the remedy to be granted if I ruled that the defendant's s. 11(b) right had been breached (it not having been addressed in the factum served October 16, 2019) and Crown materials in writing in response on the s. 11(b) issue. I also said that, in my view, both the issue of the appropriate sentence and the 11(b) issue should be argued together, because one of the possible remedies mooted by the Court of Appeal in Charley was one which affected the sentencing.

[53] Crown counsel submitted that the sentencing hearing could be held immediately, with any issues related to s. 11(b) being dealt with later.

[54] I indicated that I was concerned, among other things, that this matter had degenerated into a series of court appearances arguing discrete issues. I said that it was clear to me that if the s. 11(b) application did not need to be heard, sentencing submissions could be heard in an hour and court time was available before 10:00 am within the following two weeks, but that given the novelty of the s. 11(b) issues and in particular the remedy issue, a full day was required, particularly in light of the potential cross-examination of Mr. Croteau on his affidavit. Matter adjourned to January 7, 2020 (the first available date before me) for submissions on sentencing and remedy, with a timetable established for exchange of materials.

[55] I ruled that all remaining issues, including cross-examination, were to take place on January 7.

January 7, 2020

[56] The defendant was cross-examined and submissions on both the s. 11(b) and sentencing were heard over an entire court day.

Part 3: Legal Framework to be Used in Determining Whether a Section 11(b) Breach Has Been Established

[57] The parties do not differ about the framework to be used in determining this issue, which was established by the Supreme Court of Canada in Jordan, explained by the Court of Appeal in R. v. Coulter, 2016 ONCA 704 at para. 34, and held to be applicable to post-verdict delay in Charley at paras. 3 and 95:

(a) calculate the total sentencing delay – the period from the guilty finding to the actual or anticipated end of sentencing;

(b) subtract defence delay or waiver from the total sentencing delay, which results in the net sentencing delay;

(c) compare the net sentencing delay to the presumptive post-verdict ceiling of 5 months;

(d) if the net sentencing delay exceeds the 5 month presumptive post-verdict ceiling, it is presumptively unreasonable;

(e) to rebut the presumption, the Crown must establish the presence of exceptional circumstances;

(f) in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases; and

(g) subtract delay caused by discrete events from the net sentencing delay, resulting in the remaining sentence delay; if this exceeds 5 months consider whether the case was particularly complex such that the time taken for sentencing is justified and the delay is reasonable.

Part 4: Analysis of Whether There Has Been a Breach of Section 11(b)

(a) Total Sentencing Delay

[58] The total sentencing delay is the delay from January 2, 2019, the date the plea of guilty was entered and I found Mr. Croteau guilty, to January 7, 2020, the date I heard sentencing submissions. That is a period of 1 year 5 days.

[59] I considered whether the end date of the calculation set out above should be the date that I expected to deliver my decision on sentence and the s. 11(b) application. I have decided that I should not do so.

[60] In Charley, Doherty J.A. held that the end date of the calculation of net sentencing delay after deduction of defence delay was August 2017, when "the Crown was prepared to speak to sentence". He did not consider whether a further period ought to be added to allow for the judge's decision as to the appropriate sentence. His reasons did not make any reference to this time period.

[61] The issue of whether the time required for the judge to determine the verdict is now under reserve by the Supreme Court of Canada. That decision will have an effect on this issue.

[62] In any event, the result in this case is not affected by the length of time I have taken to make my decision, which is being delivered on January 30, 23 days after these issues were argued before me.

(b) Defence Delay

[63] Defence delay was described by Moldaver J. at para. 63 of Jordan in this way:

The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

[64] Defence counsel waived the time from March 21 to March 29, a period of 8 days. This is deducted from the total sentencing delay.

[65] Crown counsel submitted that if the s. 11(b) application had not been brought, the sentencing hearing could have proceeded very quickly after my decision had been made on October 30. I agree. Sentencing submissions could have been made in under an hour. I had one hour blocks of time available at 9:00 a.m. before commencement of trials within the two weeks following October 30. It was necessary for the sentencing submissions to be made at the same time as the s. 11(b) submissions, if for no other reason than that the Crown would submit that a potential remedy for a s. 11(b) breach included a reduction of sentence. (Charley, para. 114) But for that, sentencing submissions could have been made by November 15 at the latest. I will address this issue later in this decision.

(c) Exceptional Circumstances and the Delay Between January 7 and November 15

(i) Legal Framework

[66] Moldaver J. dealt with the concept of exceptional circumstances at paras. 69-74 of Jordan. He wrote:

69 Exceptional circumstances lie outside 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. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. [emphasis in original]

70 It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful - rather, just that it took reasonable steps in an attempt to avoid the delay.

71 It is obviously impossible to identify in advance all circumstances that may qualify as "exceptional" for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are "exceptional" will depend on the trial judge's good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

72 Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify. Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition.

73 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.

74 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, 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 at trial 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.

75 The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a 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, [2016] 1 S.C.R. 625). 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).

(ii) Complex Cases

[67] Crown counsel submitted that this was a complex case. I do not accept that submission.

[68] Moldaver J. wrote at para. 77 of Jordan:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[69] This was not a complex case. Sentencing would have taken about an hour but for the Gardiner issue. Any complexity was created by the Crown mistake (the characterization made by Crown counsel) in entering into the Agreed Statement of Facts in its present form, and then taking the steps I describe in the next section of these reasons. It was not outside the Crown's control, as is required by para. 69 of Jordan for exceptional circumstances, which include complex cases. The Crown cannot both create complexity and rely on it to justify delay. (R. v. Z.N., 2018 ONCJ 501; R. v. Albadry, 2018 ONCJ 114 at para. 28)

(iii) Discrete Events

[70] Crown counsel submitted that this case qualified as a discrete event because Crown counsel who negotiated the Agreed Statement of Facts expected that she would be entitled to lead evidence to establish the amount of marijuana the defendant had conspired to traffic.

[71] He points to her affidavit (upon which she was not cross-examined) in which she swore that it was always her intention to provide further information to the sentencing judge to expand on portions of the agreed statement of facts with regard to Mr. Croteau's role in the conspiracy and the volume of drugs being trafficked. She swore that the Crown had prepared additional material it intended to file during the sentencing hearing which included photographs and videos taken during the course of the investigation and:

The Crown did not anticipate that such easily proved details from the videos of Mr. Croteau and Mr. Saikely taken during the course of surveillance, hallway videos and video of Mr. Saikely counting and handling the marihuana received from Mr. Croteau would be contentious.

[72] As I said at para. 52 of my decision of July 31, I accept this evidence. As I explained in that decision, however, the objective evidence does not support that expectation.

[73] It was unreasonable for Crown counsel to expect that she would be able to introduce additional facts on sentencing. Although it was unforeseen that defence counsel would object to the tendering of this evidence and the court would uphold the objection, it was not reasonably unforeseen as is required by the test for exceptional circumstances set out in paragraph 69 of Jordan.

[74] Nor was it reasonably unavoidable.

[75] Crown counsel should have realized that the Agreed Statement of Facts did not specify the amount of marijuana which was the subject of the conspiracy if that was a fact which was important to put before the court on sentencing. Had she done so, she would have raised that in negotiations with defence counsel and one of two things would have happened – either the parties would have agreed on the amount, or they would not have been able to come to an agreement.

[76] If the latter, both Crown and defence would have had a decision to make. Crown counsel would have had to decide whether to accept the agreed facts without the inclusion of the amount, and the defendant would have had to decide whether he was prepared to go to trial (and proceed with his scheduled s. 11(b) hearing alleging unreasonable delay of trial) rather than agree to the amount sought by the Crown and plead guilty.

[77] That did not happen because, as Crown counsel who argued this application submitted, Crown counsel who negotiated the Agreed Statement of Facts made a mistake. That mistake was avoidable. Its consequences were foreseeable. The Crown application for a Gardiner hearing was not an exceptional circumstance as that term is defined in paras. 69 and 73 of Jordan. The consequent delay did not lie outside the Crown's control.

[78] If that delay had not occurred, sentencing submissions would have been made on March 21 if the defendant had pleaded guilty.

[79] Even if the Gardiner application was an exceptional circumstance, the Crown did not take reasonable available steps to avoid and address the problem before the delay exceeded the ceiling, as required by para. 70 of Jordan.

[80] The original Crown counsel did not alert defence counsel to the issue until March 20, 2 ½ months after the guilty plea was entered. Once her replacement knew that the defendant was objecting to the introduction of additional evidence, he did not immediately file an application for a Gardiner hearing. Instead, he waited until April 29, another 5 weeks. When he did file the application, he did not file any evidence to support the factual assertions upon which he relied until May 14, some 2 weeks later. His written submissions did not deal with the applicability of the Supreme Court's decision in Nixon, even though he relied on it, once he had been alerted to it by me, as definitively establishing the right of the Crown to resile from an agreement. It was unreasonable for counsel to not learn of this recent decision by the Supreme Court of Canada dealing with this issue and bring it to my attention on the initial hearing.

[81] Crown counsel was, in many respects, content to let the matter drift. He did, in concert with defence counsel, successfully reschedule the matter to take advantage of dates which were earlier than had originally been set. I would characterize these efforts, as Moldaver J. did of Crown counsel's efforts in Jordan, as too little too late. Furthermore, these efforts showed a willingness on the part of the Crown to mitigate the institutional delay caused by my unavailability, not to proactively anticipate and minimize the delay caused by its own actions. The Crown approach to this case, in my view, was symptomatic of the complacency of which Moldaver J. complained in that case.

[82] It cannot be said that the defendant's actions showed a different approach. On April 15, defence counsel said that while he had to take instructions, he "suspected" that a further defence application – a Charter application "or something of that ilk" would be filed if I ruled that the Crown could call further evidence, but that that application would have to be heard before the evidence was called. Any such application could have been filed and heard at the same time as the Gardiner application. On May 9, he said that he would be filing a s. 11(b) application to stay the charges if the Crown's application was granted. On May 15, he said that if I found that the Crown was permitted to call more evidence, "the case law was crystal clear" that an application to strike the plea could be brought at any time before sentence is imposed. He also said that day that he did not "at this stage" intend to file more evidence on the Gardiner application but that he wanted to "reserve" on that issue until I had ruled on whether the evidence he had already filed was admissible. He said it would be premature to bring a s. 11(b) application at that date. After Crown counsel wrote me on June 19, he arranged an appearance before me on June 27 but did not arrange for his client to attend, making it impossible to deal with the matter – something which was ultimately dealt with very briefly, and could have been resolved in the hour available before continuation of a trial on June 27 – until an appointment could be arranged on July 15. He, too, did not bring the Nixon decision to my attention on the initial hearing of the Gardiner application. He did not include a plea for the alternative relief of striking the plea until I ruled that if it was not sought at the same time the Nixon issue was heard I would not entertain it. The lengthy factum he filed in support of his s. 11(b) application did not deal with the issue of the appropriate remedy, even though this was a case of first impressions on this issue and the Court of Appeal had, in Charley, specifically flagged that as an open issue.

[83] These are not the steps of counsel "actively advancing their clients' right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and … using court time efficiently, … making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance" as described at para. 138 of Jordan and repeated at para. 33 of Cody.

[84] Doherty J.A.'s words at paras. 89 and 90 are apposite. Given the Supreme Court of Canada judgments in Jordan and Cody, they should not have come as a surprise. Doherty J.A. wrote:

89 Counsel should provide opposing counsel with material to be relied on well before the scheduled sentencing date. Any unexpected problems with holding and completing the sentencing on the selected date should be brought to the attention of the court and opposing counsel immediately, so that steps can be taken to minimize the delay. Crown counsel who do not fully engage in this cooperative process will find it difficult to justify any delay above the presumptive ceiling: Jordan, at para. 70. Defence counsel who fail in their obligation to participate in the appropriate management of the sentencing process may find causally related delays attributed to the defence or viewed as implicitly waived by the defence conduct.

90 In cases in which the sentencing proceeding will be complex, the parties should be required very soon after the verdict to make the trial judge aware of the issues that will be raised on sentencing. In doing so, counsel must be prepared to discuss those issues and their potential complexities in some detail and with some precision. Vague references to evidence that might or might not be called in respect of undefined issues are not good enough and should not be accepted by the trial judge. All parties are responsible for developing a plan that will allow the sentencing to proceed expeditiously.

[85] The manner in which the defence was conducted after the Crown gave notice of its intention to file further evidence leads me to conclude that much of it was "illegitimate" as that word is used at paras. 31 to 35 of Cody – that is, not misconduct but showing "marked inefficiency or marked indifference to delay".

[86] The Supreme Court, however, ruled in Jordan at para. 63 that defence delay is delay "caused solely by the conduct of the defence". It repeated this at para. 30 of Cody where Moldaver J. wrote:

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.

[87] I am bound by those decisions.

[88] The "illegitimate" conduct of the defence that I have described did not solely or directly cause the delay between the guilty plea and November 15, the date that sentencing submissions could have been argued but for the s. 11(b) application. The actions of Crown counsel that I have described above were the primary cause of the delay. But for those actions, the sentencing hearing could have proceeded on March 21, less than 3 months after the finding of guilt (if the application had not been brought or the issue of the quantum of marijuana raised and agreed upon) or the trial could have commenced the week of January 7 (if the issue of quantum had been raised before the plea and the defendant decided not to plead guilty). If the issue of the quantum had been raised immediately after the plea, the time for the application could have been arranged while the pre-sentence report was prepared and completed much sooner. Consequently, no deduction from the total sentencing delay can be made on account of the defence conduct I have described.

[89] Crown counsel submitted that the application for a Gardiner hearing could not be characterized as unreasonable and should therefore be deducted from the total sentencing delay, relying on para. 54 of Cody and R. v. Tsega, 2019 ONCA 111.

[90] In Cody, misconduct allegations were made against one of the officers involved shortly before an application was to be argued. As a result, the Crown was required to disclose information under R. v. McNeil, 2009 SCC 3. That caused a delay. The Court held at para. 54 that the requirement to make this disclosure was a discrete event because 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 available earliest dates.

[91] In Tsega, the Court of Appeal held that where the Crown has brought a certiorari application and/or appealed from a decision granting or refusing certiorari (in that case, following a preliminary inquiry), it should be open to the Crown to argue that the delay caused constitutes a discrete event. Hourigan J.A. wrote at para. 82:

82 The next issue is what test should be employed by an application judge in considering whether the delay occasioned by the Crown in pursuit of extraordinary remedies and appeals therefrom fits within the definition of a discrete event. In my view, the best approach is to mirror the analysis undertaken when examining defence delay. The application judge's role in that analysis is not to second-guess the defence's decision to pursue actions designed to make full answer and defence. Rather, the application judge shall intervene only where the defence is not fulfilling its Jordan imposed obligations because it is engaging in deliberate and calculated tactics aimed at causing delay: Jordan, at paras. 63-65. Similarly, in determining whether delay caused by a Crown application should be excluded from the delay calculation, the reviewing judge must recognize the Crown's discretion to take such steps and limit the analysis to a consideration of whether the Crown's actions were frivolous, undertaken in bad faith, or executed in a dilatory manner. A frivolous application is one which has no arguable basis. Again, by conducting the analysis on this basis, the court is fulfilling its Jordan imposed obligation of ensuring that all justice participants are acting responsibly and ensuring that the accused's right to be tried within a reasonable time is respected.

[92] In my view, this principle does not apply to the case before me. The issue in Tsega was whether a Crown application for certiorari or appeal therefrom was a discrete event. The Supreme Court held in Jordan that a "discrete event" must be reasonably unforeseen or reasonably unavoidable. It is apparent that a certiorari application is, by its very nature, unforeseeable. This is not a certiorari application. Nor is it akin to one. In my view, what the Court of Appeal held in Tsega was that, so long as the Crown acted reasonably in applying for and pursuing the certiorari application or appeal therefrom, the time should not be deducted.

[93] This is the way in which Doherty J.A. applied para. 82 of Tsega, quoted above, at para. 99 of Charley, commenting on whether the Crown had proceeded reasonably expeditiously in pursuing a dangerous offender application:

98 A s. 752.1 application is the Crown's first step in the bringing of a dangerous offender or long-term offender application under Part XXIV of the Criminal Code. Part XXIV proceedings are, of necessity, taken after verdict. In my view, those proceedings are properly characterized as exceptional in the sense that they are "reasonably unavoidable" once the Crown has determined that the circumstances dictate that a Part XXIV designation should be sought: see Jordan, at paras. 69-72; Cody, at paras. 46-48. However, even when delay is attributable to a reasonably unavoidable circumstance or event, the Crown has an obligation to mitigate any resulting delay: Cody, at para. 48.

99 In this case, the Crown could have been somewhat more proactive in gathering the necessary material before the verdicts. The Crown's conduct in this regard cannot, however, be characterized as unreasonable. The Crown acted responsibly: Cody, at para. 54; Tsega, at para. 82.

[94] I accept Crown counsel's submission that the position he took in the application to call further evidence had an arguable basis and was neither frivolous nor undertaken in bad faith, as those words are used in Tsega. I have already held, however, that the application itself was neither reasonably unforeseen nor reasonably unavoidable. It was not, therefore, a discrete event.

[95] I have also held that, unlike the situation in Tsega, Crown counsel was dilatory and unreasonable in executing the application.

[96] I make no deduction from the total sentencing delay for the period between January 7 and November 15.

(d) Time Required for Section 11(b) Application

[97] The s. 11(b) application added almost two months to the delay – the time between November 15, 2019 when the sentencing submissions would have been made but for the application, and January 7, 2020 when they were made.

[98] In R. v. J.M., 2017 ONCJ 4, Paciocco J., sitting in this court, held that, while it was an "attractive option" to deduct the time required for a s. 11(b) application, he was bound by the Supreme Court of Canada ruling in Jordan to not make such a deduction because that Court did not deduct such time in that case. I agree with that analysis.

[99] In appropriate circumstances, the delay required to hear a s. 11(b) application can be considered defence delay, and deducted from the total sentencing delay, when it could have been brought sooner. (R. v. Leonard, 2019 ONSC 1493 at para. 211; R. v. Brar, 2019 ONCJ 71 at para. 23; R. v. Sullivan, 2018 ONCJ 325 at para. 35)

[100] I prefer to deal with this issue when considering transitional issues.

(e) Effect of My Unavailability Because of Being Committed to a Long Trial

[101] This issue arose on March 21, 2019. I was scheduled to commence on March 25 a trial set for 8 weeks. I did not have a free day of court time in that 8 week period.

[102] On April 17, I delivered a ruling in that trial and certiorari to quash that ruling was sought in the Superior Court. That suspended that trial. On June 11, the Superior Court dismissed the certiorari application. The trial resumed on July 3 and continued, with frequent breaks to accommodate previously scheduled trials and commitments of me and counsel, over 19 more days until October 3. As a result, my schedule was more fully booked with matters that could not be rescheduled than is normally the case. I was seized with Mr. Croteau's case, since I heard the guilty plea and made the finding of guilt.

[103] I considered whether my unavailability because this unusually lengthy trial commitment constituted a "discrete event" that should be deducted from the total sentencing delay, as is a delay arising from medical emergencies of the judge, counsel, or an important witness. (Jordan, para. 72)

[104] I have concluded that I should not do so.

[105] This issue was not argued before me. It is therefore unfair to consider it now without a further delay to hear from counsel on it. I am not going to have any more delays.

[106] Furthermore, a number of things would have had to be considered by me before concluding that my unavailability would have been material to the outcome.

[107] There is always a potential for the judge who is seized with a sentencing matter being committed to a lengthy trial and unavailable to deal with sentencing issues expeditiously. That must have been in the consideration of the Court of Appeal when it set the five month presumptive standard. As the Supreme Court said in Jordan with respect to trial delay and the Court of Appeal said at paras. 86 and 87 of Charley, it is not an aspirational standard. It has been set with an understanding of the normal issues that may prevent completion by a date well below the presumptive limit.

[108] The Crown application to call further evidence was not filed until April 29, almost 4 months after the verdict. Crown counsel did not file evidence until May 15. There was a potential for cross-examination on both defence and Crown evidence. I cannot conclude that an appointment could have been obtained for a full day for this matter, as I indicated on May 15 would be required, any earlier than June 18, the date it was argued.

[109] When it was argued on June 18, neither counsel made reference to the Nixon decision, necessitating a further delay between July 30 and October 21. While it is likely that an earlier date could have been arranged but for my commitment to the other trial (which had to be scheduled among a number of other trials and continuations, some of which were approaching or had exceeded the presumptive 18 month limit) that delay would not have been necessary but for the failure to deal with the Nixon decision in their earlier submissions.

(f) Conclusion on Remaining Delay Before Considering Transitional Issues

[110] I conclude that the "remaining delay" is approximately 1 year – the time between January 2, 2019 and January 7, 2020, less 8 days waived by defence between March 21 and March 29.

(g) Transitional Issues

[111] Doherty J.A. wrote at para. 105 of Charley:

I make one further observation with respect to the application of the Jordan analysis to post-verdict delay. Jordan recognized that the new framework it put in place should be applied somewhat differently in respect of cases that were in the system before Jordan was released: see Jordan, at paras. 95-100. The majority described transitional exceptional circumstances that could, in some situations, justify delay above the presumptive ceiling. I would take the same approach in applying the presumptive ceiling applicable to post-verdict delay set down in this case. There is, however, no need to consider how the transitional exception would apply on the facts of this case, as the post-verdict delay falls under the presumptive ceiling. There was no s. 11(b) breach.

[112] The paragraphs from Jordan to which Doherty J.A. refers include the following:

95 The new framework, including the presumptive ceiling, applies to cases currently in the system, subject to two qualifications.

96 First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties' behaviour cannot be judged strictly, against a standard of which they had no notice. …

98 On the other hand, the s. 11(b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework. Section 11(b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual. We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case.

[113] The parties did not know, prior to the release of Charley, that the presumptive limit for net sentencing delay was 5 months.

[114] They did know, however, that s. 11(b) applied to post-verdict delay. That was made clear by the Supreme Court decision in R. v. MacDougall, [1998] 1 S.C.R. 45.

[115] They also knew of the call for a reversal of the "culture of complacency" demanded by the Supreme Court of Canada in Jordan.

[116] I do not accept Crown counsel's submission that the Morin factors play a role in considering post-Charley transitional issues. The Court of Appeal held at para. 48 of Charley that, apart from transitional cases in which at least some of the delay occurred before the release of Jordan, the Morin analysis has no place pre- or post-verdict. All of the relevant events in this case occurred after Jordan.

[117] What, then, is relevant when considering transitional issues in post-verdict delays?

[118] In my view, the fundamental issue is whether the parties have taken appropriate steps to expedite the proceedings as called for in Jordan, or whether they have continued to display the complacency decried in that decision.

[119] To the extent that Crown counsel, post-Jordan but pre-Charley, have done the former, it would be appropriate to conclude that some measure of delay exceeding the 5 month presumptive limit would be excusable.

[120] To the extent that defence counsel have caused delay by showing complacency, it would be appropriate to deduct time from the calculation of net sentencing delay.

[121] As I have explained, Crown counsel did not show a strong desire to move quickly in dealing with the issue, either in discovering it or in dealing with it, other than seeking earlier court dates. Consequently, I would not excuse delay in excess of the presumptive limit.

[122] Defence counsel showed complacency. That complacency included the matters I have described. Although he did file a s. 11(b) application very quickly after Charley was released, he could have filed one earlier. As I have said, it was well established that s. 11(b) applied to post-verdict delay. Furthermore, he had already filed a s. 11(b) application to be heard at the commencement of trial on January 7, that date being almost 2 years since the information was sworn. On May 9, he stated in open court that if I granted the Crown application to call further evidence it "would almost guarantee that these charges will ultimately be stayed when the Respondent inevitably renews his s. 11(b) application later."

[123] I have already found that the s. 11(b) application caused a delay between November 15, when sentencing submissions could have been completed, and January 7, when they were completed, because the s. 11(b) application could not be argued before that date. Part of the reason for the filing date of the s. 11(b) application was the release of the decision in Charley. Part of it, however, was the defence attitude of waiting, perhaps so as to increase the likelihood of a stay being granted if I allowed both the Gardiner application and the defendant's application to strike the guilty plea.

[124] In my view, taking all of these things into consideration, including transitional issues, it is appropriate to deduct the time between November 15 and January 7, a period of 8 weeks, from the total sentencing delay.

(h) The Defendant's Right to a Trial Within a Reasonable Time Has Been Breached

[125] The net sentencing delay is thus 10 months, which is 5 months in excess of the 5 month presumptive limit.

[126] Mr. Croteau's right to a trial within a reasonable time has been breached by this post-verdict delay.

Part 5: Remedy

[127] Doherty J.A. wrote in Charley, at paras. 106 to 114, that neither R. v. Rahey, [1987] 1 S.C.R. 588 nor any of the subsequent cases specifically address the appropriate remedy for post-verdict delay. He accepts as accurate Ginsberg J.'s description of the possibility of vacating a valid conviction based on sentencing delay as "an unjustified windfall" for the accused. (Betterman v. Montana, 578 U.S. ___ (2016)) He wrote that the analysis offered in Rahey to support the holding that a stay of proceedings was the required remedy for a s. 11(b) breach suggests that the remedy for a post-verdict s. 11(b) breach should target sentence and not conviction. He noted that Lamer J., writing in Rahey for himself and Dickson C.J.C., held that no court had jurisdiction to try a defendant after the passage of an unreasonable period of time, and wrote that, based on that rationale, it could be argued that post-verdict delay should impact only the jurisdiction to sentence.

[128] At paragraph 114, Doherty J.A. wrote:

It is arguable that the remedy for post-verdict delay should not affect the conviction, but should be based on a determination of the "appropriate and just" remedy as it relates to sentencing. Appropriate remedies might include a stay of the sentencing, or a stay of the enforcement of all or part of the sentence imposed. I leave this issue to a case in which the court has found a breach of s. 11(b) post-verdict.

[129] In my view, the Supreme Court of Canada made it clear in Rahey that the only remedy for a breach of s. 11(b) is a stay of proceedings. I cannot discern a way in which to limit its application to proceedings occurring before a finding of guilt. I am bound by that decision, which is not weakened by the Court's subsequent decision in R. v. Nasogaluak, 2010 SCC 6.

[130] In Rahey, only 8 of the Court's members took part in the judgment. There were 4 separate opinions, each supported by 2 judges. One of the issues was the remedy for a breach of s. 11(b). The breach in that case occurred before a verdict was declared, and arose as a result of a delay in the trial judge giving a decision on an application for a directed verdict.

[131] Lamer J. delivered reasons on behalf of himself and Dickson C.J.C. They held that a trial court lost jurisdiction to proceed with a trial once a breach of s. 11(b) had occurred. He wrote at paras. 48 to 51:

48 Now to turn to the remedy. Again in Mills, I have explained why a stay is the minimal remedy. If an accused has the constitutional right to be tried within a reasonable time, he has the right not to be tried beyond that point in time, and no court has jurisdiction to try him or order that he be tried in violation of that right. After the passage of an unreasonable period of time, no trial, not even the fairest possible trial, is permissible. To allow a trial to proceed after such a finding would be to participate in a further violation of the Charter. In Barker v. Wingo, supra, Powell J. wrote, at p. 522:

The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.

49 Burger C.J. later wrote in Strunk v. United States, 412 U.S. 434 (1973), at p. 440, "In light of the policies which underlie the right to a speedy trial, dismissal must remain, as [Powell J. in] Barker noted, 'the only possible remedy'". The same is true, in my view, under s. 11(b), in that a trial cannot be allowed to proceed subsequent to a finding that a violation has occurred.

51 It is … open to the courts to take preventive measures, based on their inherent power to control their process, prior to an actual violation of s. 11(b). Where, however, on balancing the various factors, the court decides that the accused's right to be tried within a reasonable time has already been contravened, a stay of proceedings will be the appropriate remedy. It is not necessarily the only remedy, for additional remedies may be just and appropriate in the circumstances of the case. The stay is a minimum remedy, to which others may be added, such as, possibly, damages, if it be proved that there was malice on the part of the Crown and resulting prejudice. [emphasis added]

[132] Lamer J. made it clear that a stay – what he called the "minimum remedy" – had the effect of halting the proceedings as at the time the finding was made when he held that the remedy could not be an acquittal for someone like the accused in that case who had asserted that the breach had occurred before the end of the trial. He wrote at para. 52:

If an accused chooses, as in this case, to challenge the process before the end of the trial under s. 11(b) of the Charter, he or she then elects to put a definitive but premature end to the process instead of a final determination of the issue of guilt or innocence. In such a case, the proper remedy is, in my respectful view, a stay. [emphasis added]

[133] LeDain J., writing on behalf of himself and Beetz J., held that the only possible remedy was a stay once the proceedings had continued beyond a reasonable time. He wrote at para. 58:

Finally, I am of the view that a stay of proceedings is the appropriate and just remedy for an infringement of the right to be tried within a reasonable time. I do not find it necessary, in support of this conclusion, to characterize such an infringement as going to the jurisdiction to try an accused, although such a characterization may well be justified for other purposes. It is sufficient, in my view, that a remedy, such as an order to expedite proceedings, that would compel the trial of an accused beyond a reasonable time cannot be regarded as appropriate and just. [emphasis added]

[134] Wilson J., on behalf of herself and Estey J., held that a court had no jurisdiction to try an accused person once his or her right under s. 11(b) had been breached. She wrote at para. 61:

I agree with Lamer J. that a finding that s. 11(b) has been infringed goes to the jurisdiction of any court to put the accused on trial or to continue with the charges against him. For clarification of my position on this aspect I want to stress the following. An application for relief under s. 24(1) can only be made by a person whose right under s. 11(b) has been infringed. This is clear from the opening words of s. 24(1). The applicant must have satisfied the court that the reasonable time referred to in the section has already expired. If it has not already expired the accused may, of course, be entitled to claim other relief but not under s. 24(1) for a violation of s. 11(b). He may be able to claim in the alternative for relief outside s. 24(1), e.g., for an order expediting his trial, in case the court should find on his s. 24(1) application that the reasonable time has not yet expired but is fast approaching. But, in my view, what the court cannot do is find that his right has been violated, i.e., that the reasonable time has already expired, and still press him on to trial. For to do so is to deprive him of his right under s. 11(b) in the pretext of granting him a remedy for its violation. It follows, therefore, that I cannot agree with my colleague, La Forest J., that there is a panoply of remedies available under s. 24(1) for the violation of s. 11(b). [emphasis added]

[135] Only two members of the Court held that other remedies short of a stay could be granted for a s. 11(b) breach. Laforest J. wrote on behalf of himself and McIntyre J. that a broad range of remedies were possible. He cited his earlier judgment in R. v. Mills, [1986] 1 S.C.R. 863 where, writing only for himself, he had held that s. 24(1) of the Charter authorized remedies beyond staying the prosecution even where s. 11(b) had been breached, and McIntyre J.'s judgment in that case in which he held that a breach of any Charter right did not "exclude the court from further participation in the matter" but rather gave a court discretion to give the appropriate remedy.

[136] Laforest J. and McIntyre J. were in the minority on this issue. The majority of the Court decided that a minimum remedy for a breach of s. 11(b) was a stay of proceedings as at the point in time that the breach occurred. The majority held that a court cannot continue the proceedings beyond that point.

[137] The majority decisions did not limit this principle to cases where no verdict had been pronounced. Their reasons are to the contrary. While 4 of the 6 majority members held that a court lost jurisdiction once the s. 11(b) breach had occurred, even the remaining two held that to continue a trial beyond a reasonable time was not "appropriate and just", the standard required for a s. 24(1) remedy. That would be so whether the reasonable time had been reached before the defence was put to its election whether to call evidence – as was the case in Rahey – or after a finding of guilt and before imposition of sentence.

[138] And there is no doubt that s. 11(b) continues to apply after a finding of guilt. That has long been the law.

[139] In Rahey, the defendant's right to a trial within a reasonable time was breached after the trial had begun but before he had elected whether to call evidence. Consequently, he was not entitled to an acquittal but only to a stay of proceedings.

[140] In the case before me, Mr. Croteau's right to a trial within a reasonable time was breached after I found him guilty but before I imposed sentence. I conclude that, despite the attractiveness of Laforest J.'s reasons, and the potential for an "unjustified windfall" for a defendant who has been found guilty, the only remedy I can grant for the infringement of Mr. Croteau's right to a trial within a reasonable time is a stay of proceedings.

[141] The last substantive step in the proceedings occurred on January 2, 2019, when I found Mr. Croteau guilty of conspiracy to traffic in marihuana and trafficking in marijuana. I am not able to take any further substantive step. Nor, in my view, is it appropriate to vacate the finding of guilt.

Part 6: Appropriate Sentence if Section 11(b) Had Not Been Breached

[142] Crown counsel asked me to determine what sentence I would have imposed, even if I concluded that the appropriate remedy is a stay of proceedings.

[143] I understand and appreciate the reason for this request. It is possible that this may come before the Court of Appeal. Should that occur, the court may be interested in what sentence I would have imposed in the event that that court decides that I should have done so.

[144] I have given this request extensive consideration. I have concluded that I should not accede to it. It is generally a good principle for a court to decide no more than it has to. More important, however, is the reality that determining an appropriate sentence is not an abstract exercise. The knowledge that the offender will be required to undergo whatever punishment a judge determines is appropriate plays an important role in the determination of what that sentence will be. In my view, this knowledge, and its attendant accountability and responsibility, is a necessary part of a sentencing decision.

[145] That knowledge would be absent if I were to pronounce now on what sentence I would impose on Mr. Croteau if I had been required to do so. The result would not necessarily be the right one. I decline to do so.

Part 7: Conclusion

[146] I stay further proceedings against Mr. Croteau. The finding of guilt remains.

Signed: Justice P.K. Doody