COURT FILE NO.: CRIMJ(F) 1504/16 DATE: 20160825
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – MICHAEL WONG and MICHAEL SINGH Applicants
H. Akin, for the Crown Respondent W. Mackenzie, for the Applicant Wong P. O’Marra, for the Applicant Singh
HEARD: June 13 and August 10, 2016
SECTIONS 11(b) CHARTER APPLICATION:
REASONS FOR JUDGMENT
A. INTRODUCTION
[1] The applicants, Michael Wong and Michael Singh are before the Court charged on a four count indictment as follows:
THAT THEY, the said MICHAEL WONG and MICHAEL SINGH, unlawfully did, at the City of TORONTO and elsewhere in the Province of Ontario, on or about the 8th day of November in the year 2013, produce a schedule II controlled substance, to wit: Cannabis, its preparations and derivatives, namely Cannabis (Hashish), contrary to Section 7(1) of the Controlled Drugs and Substances Act.
AND FURTHER THAT THEY, the said MICHAEL WONG and MICHAEL SINGH, unlawfully did, at the City of TORONTO and elsewhere in the Province of Ontario, on or about the 8th day of November in the year 2013, produce a schedule II controlled substance, to wit: Cannabis, its preparations and derivatives, namely Cannabis (Marihuana), contrary to Section 7(1) of the Controlled Drugs and Substances Act.
AND FURTHER THAT THEY, the said MICHAEL WONG and MICHAEL SINGH, unlawfully did, at the City of TORONTO and elsewhere in the Province of Ontario, on or about the 8th day of November in the year 2013, have in their possession a schedule II controlled substance for the purpose of trafficking, in an amount exceeding 3 kilograms, to wit: Cannabis, its preparations and derivatives, namely Cannabis (Resin), contrary to Section 5(2) of the Controlled Drugs and Substances Act.
AND FURTHER THAT THEY, the said MICHAEL WONG and MICHAEL SINGH, unlawfully did, at the City of TORONTO and elsewhere in the Province of Ontario, on or about the 8th day of November in the year 2013, have in their possession a schedule II controlled substance for the purpose of trafficking, in an amount exceeding 3 kilograms, to wit: Cannabis, its preparations and derivatives, namely Cannabis (Marihuana), contrary to Section 5(2) of the Controlled Drugs and Substances Act.
[2] Michael Wong was arrested on November 8, 2013. Michael Singh was arrested on November 19, 2013. Each was released on a Form 10 Promise to Appear. An Information charging them was sworn on December 2, 2013. Their trial is scheduled to begin on September 26, 2016 for four to five days.
[3] Each applicant submits that this delay constitutes a breach of his s.11(b) Charter right to trial within a reasonable time and each says that the charges ought to be stayed pursuant to s. 24(1) of the Charter. The Crown acknowledges that the delay warrants scrutiny but submits that it is not sufficient to warrant finding a violation of s. 11(b).
[4] This application was argued on June 13, 2013. I reserved my decision advising that I would release judgment before the end of July. On July 8, 2016, the Supreme Court of Canada released its decisions in R. v. Jordan, 2016 SCC 27 and R. v. Williamson 2016 SCC 28. In these decisions, the Supreme Court set out new framework for applying s. 11(b). Counsel were invited to make further oral submissions in light of these decisions and did so on August 10, 2016.
[5] For the reasons that follow, the stay application is dismissed.
B. CHRONOLOGY
a) The Arrest and Swearing of the Information
[6] In the fall of 2013, members of the Peel Regional Police Major Drugs and Vice Unit began surveillance at an equestrian supply store in Mississauga called Greenhawk. This surveillance was begun after police received information that an individual was purchasing large quantities of alcohol for a hash production lab from Greenhawk. The surveillance led the police to an industrial unit, number 29, at 246 Brockport Drive in Toronto on November 8, 2014. A number of individuals, including Michael Wong, were arrested that day and released on a Promise to Appear.
[7] Michael Singh subsequently surrendered to the police and was arrested on November 19, 2013. He was released on a Promise to Appear.
[8] Following the execution of a search warrant at that unit, the police seized 30.3 kilograms of cannabis resin, 23 boxes of isopropyl alcohol, $6,400.00 and 12.04 kilograms of dried marijuana.
[9] An Information was sworn on December 2, 2013 charging the applicants and three others (An Chung, Waynes Swaby and Va Voong) with possession of a controlled substance for the purpose of trafficking and production of a controlled substance.
b) Proceedings in the Ontario Court of Justice
[10] The applicants had their first appearance on December 5, 2013, three days after the Information was sworn. The disclosure package was not yet prepared and vetted and the matter was adjourned to January 10, 2014.
[11] On January 10, 2014, designations had been filed for the five co-accused and none were present in court. Mr. Mackenzie, who acted for all five accused, indicated that “disclosure is not quite ready so I’m going to ask that the matter go over for four weeks, February 14…”.
[12] On February 14, 2014, Mr. Mackenzie appeared for the applicants, who were not present. Mr. North for the Crown indicated that he was giving to Mr. Mackenzie a box of disclosure for each of the co-accused with a binder and two DVD’s. He stated:
Mr. Mackenzie wanted to review this material but I’m going to suggest that we set the judicial pre-trial now, get far enough in advance that Mr. Mackenzie has an opportunity to review it.
[13] Mr. Mackenzie responded that, “it may be that I’m going to require additional counsel for the judicial pre-trial. So why don’t – why don’t we come back on the 21st day of March in this court…and I’ll have a chance to review it then and then we can set a – a judicial pre-trial on that day. The Justice of the Peace asked whether he would be able to review it by March 21st, to which Mr. Mackenzie responded that he would and that he would have enough time to get other counsel “on board” if there were conflicts. The matter went over to March 21, 2014.
[14] On March 21, 2014, Mr. Mackenzie indicated that he was still acting for all five co-accused, who were not present in court. He had conducted a Crown pre-trial, and had been advised that he would be receiving further disclosure from the Crown that day. He asked for a judicial pretrial to be set for April 25, 2014.
[15] On April 25, 2014, Mr. Mackenzie appeared for the applicants, who were not present. Crown counsel, Ms. Thompson, indicated that a fruitful judicial pre-trial had been conducted with Justice Hawke. Justice Hawke had directed that the matter should go before Justice Gage, the Local Administrative Judge (LAJ), to settle an issue of jurisdiction and whether the case should be tried in Toronto or in Peel. A date of May 30, 2014 was set before Justice Gage.
[16] Before Justice Gage on May 30, 2014, Ms. Thompson explained why the Crown position was that the matter should remain in Peel. Justice Gage acknowledged the legitimacy of the jurisdictional concern raised by Justice Hawke about offences that were alleged to have occurred in Toronto being tried in Peel. However, he agreed that the matter would remain in Peel.
[17] Mr. Mackenzie told Justice Gage that his clients, who were present, still had not had a meaningful judicial pre-trial as the jurisdictional issue had really side-tracked the other substantive issues. Justice Gage offered to counsel, “if you wish to have a pre-trial later today, I’ll accommodate that”. Mr. Mackenzie was not available as he had a commitment in another courthouse that afternoon.
[18] Justice Gage also offered that if the parties contacted his assistant, he would be happy to conduct a pre-trial in chambers at a time convenient for defence counsel and the Federal Crown.
[19] The Crown suggested that the matter be spoken to on June 6, 2014 to set a judicial pre-trial. Justice Gage agreed that it could be adjourned to June 6, or to any other date that was convenient, or that it could be brought forward for a pre-trial with him. Mr. Mackenzie asked that it be set for July 4, 2014 if they were going to set it down and then bring it forward. The matter was adjourned to the July 4, 2014.
[20] There is no evidence that the parties did anything to try to bring the matter forward for a judicial pre-trial before Justice Gage.
[21] On July 4, 2014, Mr. Mackenzie asked that a judicial pre-trial be set for July 25, 2014, three weeks later. The Crown asked whether earlier dates were available but Mr. Mackenzie indicated that he was not available on a Friday (the date on which Federal judicial pre-trials are conducted in Peel) before July 25, 2014.
[22] On July 4, 2014, Mr. North provided the Information to Obtain (ITO) to Mr. Mackenzie, noting that a message had been left for Mr. Mackenzie on June 23, 2014 that it was available to be picked up.
[23] A judicial pre-trial was conducted on July 25, 2014 before Her Honour Justice McLeod. After the pre-trial, Mr. Mackenzie, who appeared for the applicants, asked that the matter be adjourned to August 20, 2014 so that he could have some discussions with the Crown. He expressly waived s. 11(b) for this period.
[24] On August 20, 2014, Mr. Mackenzie appeared for the applicants, who were not present. He explained to Justice Kelly that there had been two judicial pre-trials already and that he was requesting a further judicial pre-trial so that the matter could then be set for a discovery or a preliminary inquiry. The Crown was available that Friday (August 22, 2014), but Mr. Mackenzie was not, so the further judicial pre-trial was set for August 29, 2014.
[25] On August 29, 2014, Mr. Mackenzie advised Justice Schwartzl that the parties were ready to set a preliminary inquiry. They had obtained March 16, 2015 as the first available date for a one day preliminary inquiry. Both counsel were satisfied that even with committal in issue, one day was sufficient for the completion of the preliminary inquiry in respect of the five co-accused. The matter was adjourned to March 16, 2015 for the preliminary inquiry.
[26] On March 16, 2015, Mr. O’Marra appeared for the first time as counsel for Mr. Singh and indicated that he was prepared to go on the record. The Crown assigned to the prosecution, Ms. Afonso, advised Justice Keaney that a very important matter had arisen that morning and that in the circumstances, it would not be prudent to begin the preliminary inquiry. She asked that the matter be adjourned to March 20, 2015.
[27] While the transcript is not very clear as to why the Crown sought this adjournment, counsel agree that when disclosure of the ITO was made to the five co-accused, the Crown inadvertently provided an unvetted copy to Mr. Singh, which was then given to Mr. O’Marra very shortly before the March 16, 2015 scheduled preliminary inquiry. Mr. O’Marra realized that he should not have the unvetted ITO and immediately advised Ms. Afonso of the error on March 16, 2015.
[28] Both Mr. O’Marra and Mr Mackenzie opposed the adjournment sought by the Crown on March 16, 2015 as they were ready to proceed. The matter was adjourned to March 20, 2015.
[29] On March 20, 2015, Mr. O’Marra appeared for the five co-accused. He indicated that he did not wish to go on the record for Mr. Singh as he was not fully retained. He was prepared to set a new date for the preliminary inquiry and for it to be marked “with or without counsel”.
[30] Ms. Afonso and defence counsel agreed that two days should be set for the preliminary inquiry. The preliminary inquiry was re-scheduled for September 8 and 9, 2015. Mr. O’Marra indicated that they had been offered April 9, 2015 but had not taken it as it was only one day and two were required. The first time he was free for two days was April 14-15, 2015. Mr. Mackenzie’s first availability for two days was at the end of May. Mr. O’Marra made clear that the issue of a trial within a reasonable time was very much a live one. The “Verification of trial date provided by the trial coordinator” form indicates that counsel were also offered September 1 and 2, 2015, dates that the Crown was available but the defence were not.
[31] On September 8, 2015, the date on which the second scheduled preliminary inquiry was to proceed, Mr. Singh did not attend at court until 11:20. In the intervening time, the parties had a further judicial pre-trial with Justice McLeod. They were able to work out a potential resolution, which they agreed would be entered into on October 7, 2015 before Justice McLeod. The matter was adjourned to October 7, 2015.
[32] On October 7, 2015, Mr. Mackenzie and Mr. O’Marra advised Justice McLeod that their clients would be entering guilty pleas. Both applicants were arraigned, pleaded guilty, and the matter was adjourned to December 16, 2015 for the preparation pre-sentence reports.
[33] On the morning of December 16, 2015, Crown counsel advised Justice McLeod that the applicants now wished to strike their pleas. While the Crown had never been seeking conditional sentences, she had been aware that both applicants would be seeking conditional sentences. Defence counsel had not realized that the applicants were ineligible for conditional sentences and, having learned this, sought to have their pleas set aside. The pleas were struck.
[34] Counsel for the applicants took responsibility for their misapprehension as to the availability of conditional sentences and asked that new dates be set for a third scheduled preliminary inquiry.
[35] The parties were offered dates including: January 7-8, 14-15, 20-21 and February 3-4 and 11-12, 2016. The first dates that were agreeable to the defence were February 11 and 12, 2016 and the preliminary inquiry was scheduled for those dates.
[36] This matter was not reached on February 11, 2016 and was not started. Counsel for both applicants expressed concern with the delay. As a result of what I am told were new scheduling rules, what had been a two-day preliminary inquiry was then scheduled for three days. The matter was adjourned to March 14, 15 and 16 for the preliminary inquiry.
[37] On March 14, 2016, Mr. Mackenzie advised that there would be a consent committal for the two applicants, and that the Crown was going to withdraw the charges for the other three co-accused. The matter was remanded to the Superior Court Assignment Court on March 18, 2016.
c) Proceedings in the Superior Court of Justice
[38] On March 18, 2016, Justice Durno offered to set a trial date. Mr Mackenzie appeared on behalf of himself and Mr. O’Marra and indicated that he did not have Mr. O’Marra’s availability dates. He indicated that he would be prepared to set a trial date after the judicial pre-trial. A judicial pre-trial was set for April 18, 2016.
[39] On April 18, 2016, counsel were asked for their first availability for a four to five day trial. Counsel for the applicants wished to schedule their s. 11(b) application and the trial. Mr. O’Marra’s first available block of trial time was beginning on Tuesday, June 21. Mr. Mackenzie suggested using three days that week and continuing on Wednesday, June 29 and Thursday, June 30. The court did not have the week of June 27, 2016 available for the trial. Counsel were also available the week of July 4, 2016. The first week after that that the court offered was July 12, 2016.
[40] Counsel were offered trial dates the weeks of: July 12 or 20, August 2, 8 or 15, or September 12, 19 or 26, 2016. Between the schedules of both defence counsel, the first date that they were available was September 26, 2016. The trial was set for that week.
C. THE APPLICABLE LEGAL PRINCIPLES
[41] While this application was initially argued under the well-established s. 11(b) Charter jurisprudence that followed the approach set out in R. v. Morin, [1992] 1 S.C.R. 771, it is clear that this is no longer the correct approach to be followed.
[42] The new approach, as set out in Jordan at paras. 46-47, requires the court to consider the total period of delay from the charge to the anticipated end of the trial. If that time, minus the defence delay, exceeds the ceiling of 30 months for cases in the Superior Court, then the delay is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay is granted.
[43] The Supreme Court made clear that once the total delay is calculated, delay attributable to the defence must be subtracted because the defence should not be allowed to benefit from its own delay-causing conduct.
[44] There are two components to defence delay: delay that is waived by the defence and delay that is caused solely by the conduct of the defence.
[45] In Jordan, the Court discussed at paras. 63-65 the sorts of delays that are attributable to the conduct of the defence. These include delays where the accused`s acts caused the delay directly or indirectly. The easiest example are deliberate and calculated defence tactics aimed at causing delay. However, the court went on to say that:
The defence will have directly caused the delay if the court and the Crown are ready to proceed but the defence is not. The period of delay resulting from that unavailability will be attributable to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable…Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay…
[46] The court is clear that the legitimate actions of the defence to respond to the charges are not defence delay. For example, the defence must be given time to proceed even where the court and Crown are ready to proceed. Defence applications and requests that are not frivolous do not count against the defence.
[47] If the delay minus the defence delay exceeds the ceiling, the delay is presumptively unreasonable. The Crown may rebut the presumption by showing that the delay was because of the presence of exceptional circumstances.
[48] The court explained that exceptional circumstances “lie outside the Crown’s control” in the sense that they are reasonably unforeseen or reasonable unavoidable and cannot reasonably be remedied by the Crown. They need not be rare or entirely uncommon.
[49] The list of what may constitute an exceptional circumstance is not closed. Generally exceptional circumstances fall into one of two categories. The first category is “discrete events”. This may include such things as medical or family emergencies, or exceptional events that occur at trial that are unforeseen and unavoidable and which delay a trial, such as an unexpected recantation by a complainant. The second category of exceptional circumstances may occur when a case is particularly complex. As this is not an issue here, I will not review this type of exceptional circumstance further.
[50] The court spent some time in Jordan addressing how the new framework is to be applied to cases that are already in the system: paras. 92-101. The new framework is to be applied contextually and flexibly to cases in the system. While the presumptive 30 month ceiling applies, there are two important qualifications.
[51] First, a “transitional exceptional circumstance” may apply when the Crown satisfies the court that the time taken for the case is justified based on the parties’ reasonable reliance on the law as it previously existed. The assessment is to be contextual, sensitive to the way in which the Morin framework was applied and the fact that parties’ conduct cannot be judged against a standard about which they had no notice.
[52] Further, the delay may exceed the ceiling because the case is moderately complex and in a jurisdiction with significant institutional problems. In such a jurisdiction, judges must account for the fact that Crown counsel may be constrained be systemic delay issues. The transitional exceptional circumstances recognizes that change takes time and even significant institutional delay will not automatically result in a stay of proceedings.
[53] At the same time, the court made clear that stays of cases in the system should be entered if, for example, the delay “in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown.”
[54] The court recognized that for most cases in the system, Jordan should not automatically transform what would have been considered a reasonable delay under the old framework into an unreasonable one.
D. APPLICATION OF THE LEGAL PRINCIPLES TO THE FACTS
a) The Total Delay
[55] The applicants initially submitted that the s. 11(b) clock commenced with Mr. Wong’s arrest on November 8, 2013. The Crown argued that the time begins with the swearing of the information on December 2, 2013.
[56] In R. v. Kalanj, [1989] 1 S.C.R. 1594, the Supreme Court of Canada addressed this very issue. Writing for the majority, McIntyre J. held, at para. 16:
I would therefore hold that a person is “charged with an offence” within the meaning of s. 11 of the Charter when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn. It would follow, then, that the reckoning of time in considering whether a person has been accorded a trial within a reasonable time under s. 11(b) will commence with the information or indictment, where no information has been laid, and will continue until the completion of the trial.
[57] I understood the applicants to concede during their initial oral submissions that the time should start on December 2, 2013. I think this was appropriate as under the Morin framework, the delay clock started when the information was sworn.
[58] While there is no explanation for what appears to be a change in the law in terms of when the relevant delay begins, the Supreme Court of Canada states clearly that the time now begins with the date charged (See: Jordan at paras. 47, 49, 60, 119; Williamson at paras. 19).
[59] The parties now agree that the start date for Mr. Wong is November 8, 2013 and for Mr. Singh is November 19, 2013. The estimated date for the completion of the trial is September 30, 2016. The total delay for Mr. Wong is thirty-four months and three weeks. The total delay for Mr. Singh is thirty-four months and two weeks.
b) Delay Attributable to the Defence
[60] The next step is to determine whether any of the delay was waived or caused solely by the defence.
[61] Both the Crown and defence agree that there is one period of waiver: the time from July 25 to August 20, 2014. This period of four weeks must be deducted from the overall delay.
[62] The biggest disagreement between counsel is what other time periods are properly characterized as attributable solely to the defence.
[63] I must consider each of the periods said by the Crown to be attributable to the defence.
i) February 14-March 21, 2014
[64] First, the Crown points to the delay from February 14 to March 21, 2014 and says that at least a couple of weeks of this delay were caused by the defence. She submits that the Crown asked to set a pre-trial on February 14, and said that it could be set so as to give Mr. Mackenzie time to review the disclosure, but that Mr. Mackenzie wished to review the disclosure and then to come back to set the pre-trial.
[65] The defence say that upon receiving the disclosure, it was reasonable for Mr. Mackenzie to want to review it before setting a judicial pre-trial. It is argued that this is part of the time that defence counsel could reasonably spend to prepare for the judicial pre-trial.
[66] Under the old analysis, I would have viewed all of this time as neutral intake time. I have reflected on whether, under the Jordan analysis, it should properly be understood as defence delay.
[67] In my view, it was reasonable for the defence to wish to review the disclosure before setting the judicial pre-trial. I note that in addition to reviewing this disclosure, the record reveals that Mr. Mackenzie needed to reflect on whether there was any conflict in him acting for all five of the co-accused, and whether he needed other counsel present for the pre-trial. In these circumstances, I view this delay as necessary for the defence to be able to move the case forward and cannot characterize it as delay attributable to the defence.
ii) May 30-July 3, 2014
[68] Once it was decided that the matter would remain in Peel, it was necessary for there to be a meaningful judicial pre-trial. The court was available for a judicial pre-trial on the afternoon of May 30, 2014. The defence says that it was not realistic to expect Mr. Mackenzie to be able to conduct a pre-trial that afternoon. I agree.
[69] The Crown suggested that the matter be spoken to on June 6, 2014 and the court was agreeable. The court also made clear that it could be brought forward for a pre-trial with him. It was defence counsel who asked to adjourn to July 4, 2014.
[70] In my view, the delay from June 6 to July 4, 2014, a delay of five weeks, is attributable to the defence. Defence was concerned about having a meaningful judicial pre-trial and clearly wanted to schedule one. The court and Crown were available on June 6, 2014 to set a date for one to proceed and the Crown specifically asked to come back on that date. Justice Gage made clear that whatever date was set, the parties were free to bring the matter forward for a pre-trial. Knowing that the Crown was asking for the June 6 date, defence counsel said:
Yes, if we’re going to do that and eventually bring it forward, sir, could I ask that it be put on the federal court date of July 4th in 204 because I’m here that day on other federal matters and of course my friend and I can then speak to your assistant about bringing the matter forward for a judicial pre-trial with you.
[71] No one did anything to try to bring the matter forward for a pre-trial, as a result of which the judicial pre-trial was not set until July 4, 2016. I think that counsel’s decision to seek the July 4 date, over the available June 6 date, means that this five weeks of delay is attributable to the defence.
iii) September 1-8, 2015
[72] On March 20, 2015, when new dates were set for the preliminary inquiry, the court and Crown were able to set dates of September 1 and 2, 2015. Defence counsel was not available until September 8 and 9. It is conceded by the defence that this delay of one week is defence delay.
iv) January 7-20, 2016
[73] When the pleas were struck on December 16, 2015, new dates were required for the third preliminary inquiry. The parties were offered January 7-8, 14-15, 20-21, February 3-4 and 11-12. The first dates that defence counsel were available were February 11 and 12, 2016. The Crown was available on the January 7-8 and14-15 dates, but not the January 20-21 and February 3-4 dates. It is the Crown’s position that the defence caused the delay from January 7 to 20, 2016.
[74] The defence conceded that they were responsible for the delay from January 7-20, 2016, a period of two weeks.
v) June 20-July 4, 2016
[75] The Crown submits that this period of delay is attributable to the defence because counsel were not available for trial. The defence respond that they were not offered dates for trial until July 12, 2016. I have carefully reviewed the transcript of the proceedings in the Superior Court Assignment Court. I cannot conclude that the defence caused the delay of the trial over this period. It is not clear from the transcript that the court had dates available for the trial during this period.
vi) July 12-September 26, 2016
[76] The court did have trial dates available to start the trial on the weeks of July 12, 20 or August 2, 8, or 15 or September 12, 19, 2016. Between the two counsel, their first available trial date was September 26, 2016.
[77] The Crown says this delay from July 12 to September 26, 2016 was caused by the defence. By July, counsel would have had ample time to file material in support of their Charter applications and to prepare for trial. The Crown and court were able to accommodate the trial.
[78] The defence says that counsel were available for trial on July 4 and the court was not able to set a date then. As a result, it was suggested that the defence should not be responsible for all of the delay over the summer. It appeared to be conceded that some of the delay was caused by the defence.
[79] In my view, the delay from July 12 to September 26, 2016, a period of eleven weeks, is defence delay as it resulted from the defence being unavailable for trial dates that the court was able to offer in April. I understand that defence counsel had earlier dates available that the court could not accommodate. But I am not persuaded that this results in the delay that was caused by their unavailablilty being anything other than defence delay.
vii) Conclusion on Defence Delay
[80] I am of the view that the following periods must be deducted from the total delay:
- May 30-July 3, 2014 5 weeks
- July 25-August 20, 2014 4 weeks
- September 1-8, 2014 1 week
- January 7-20, 2016 2 weeks
- July 12-September 26, 2016 11 weeks 23 weeks
[81] When I deduct the delays caused by the defence from the total period, I am left with a total delay for Mr. Wong of twenty-nine months. The total delay for Mr. Singh is twenty-eight months and three weeks. The delay for both is, therefore, below the presumptive ceiling.
[82] The court in Jordan explains at para. 82 that a delay may be unreasonable even if it is below the presumptive ceiling, but it is for the defence to show that it took meaningful steps to expedite the proceedings and that the case took markedly longer than it should have. Further, the court emphasized at para. 99 that for cases already in the system, these criteria must be applied contextually and sensitively to the parties’ reliance on the previous state of the law. The court observed that given the institutional delay that has been tolerated, a stay of proceedings for cases below the ceiling will be even more difficult to obtain for cases already in the system.
[83] In my view, in this case, which has proceeded entirely under the old regime, and in which the delay is below the new ceiling, it would not be appropriate to grant a stay of proceedings.
c) Exceptional Circumstances
[84] I observe that even if I am wrong about the delay that is attributable to the defence, and the total delay exceeds the 30 month ceiling for either applicant, there are two periods of delay that must be considered to determine whether they are exceptional circumstances.
[85] The first is the period of delay from April 25 to May 30, 2014. This is the delay that was caused when Justice Hawke directed that the jurisdictional issue required the matter to go before Justice Gage, the Local Administrative Judge, in order to determine whether or not it should proceed in Brampton.
[86] The Crown says that this is a discrete exceptional circumstance that was outside its control. The defence says that while the delay was out of the hands of the Crown, Mr. Mackenzie was available to appear before Justice Gage on May 8, 2014 and that any delay after that is not attributable should not fall to the defence.
[87] In my view, the delay caused by the need for the case to go before the Local Administrative Judge is properly understood as a discrete exceptional circumstance. It was unexpected, was outside the control of the Crown and could not easily have been avoided or remedied. Therefore, the period from April 25 until May 8, 2014, which is two weeks that were needed before the defence would have been available to go back before Justice Gage, is one period that the Crown could have relied upon to discharge its burden of justifying being in excess of the ceiling.
[88] The second period that requires consideration is the period of delay that resulted from the applicants entering guilty pleas and then asking that those pleas be set aside when they became aware that conditional sentences were not an available sentence for them. This delay was significant, amounting to fourteen weeks. The resolution was reached on September 8, 2015 and resulted in the preliminary inquiry not proceeding that day. The matter went over to October 7, 2015 for the plea and then to December 16, 2015 for sentencing. At that time, the pleas were struck and a new date set for the preliminary inquiry.
[89] The Crown argues that it might have dealt with this delay differently had it appreciated the new Jordan analysis, and suggests that this be considered a transitional exceptional circumstance. The defence position under the Morin analysis was that this delay was neutral and inherent as it could not have been predicted. Under the new analysis, the defence does not go so far as to say that this delay is an exceptional circumstance.
[90] In my view, this delay can fairly be characterized as the sort of discrete exceptional circumstance described in Jordan. At the time the preliminary inquiry was adjourned from September 8, 2015 for the plea, and at the time the plea was then taken on October 7, 2015, no one could have predicted that all parties were under a misapprehension that a conditional sentence was available. On the one hand, given that this is the sentence that was being sought by the defence, and opposed by the Crown, one could see the defence as more of a cause of the delay than the Crown. On the other hand, it appears that the pre-trial judge also failed to appreciate that the conditional sentence was unavailable. I am hesitant to rest blame for the delay on any single party.
[91] However, I do not see how this can fairly be seen as part of the time that would be expected for the completion of the case. Nor do I see how the Crown could have taken steps any faster than it did, when it sought early dates for the preliminary inquiry after the pleas were struck. In my view, had the total delay been over the 30 month ceiling, at least some of the delay caused by the pleas being struck would have been an exceptional circumstance that would have enabled the Crown to discharge its burden of justifying a delay over 30 months.
E. DISPOSITION
[92] As I have found, the total delay in this case, once the defence delay is accounted for, is below the ceiling set by the Supreme Court of Canada. Even had it not been, there are discrete exceptional circumstances that would have enabled the Crown to justify a delay over the ceiling. In this period of transition, in which a flexible and contextual approach is mandated, with sensitivity to the parties’ reliance on the previous state of the law, I find no breach of s. 11(b) of the Charter and dismiss the applications.
WOOLLCOMBE J