CITATION: R. v. Picard, 2016 ONSC 7061

COURT FILE NO.: CR-12-7874

DATE: 2016-11-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

ADAM PICARD

Applicant

Dallas Mack and Louise Tansey, for the Crown/Respondent

Lawrence Greenspon and Eric Granger, for the Accused/Applicant

HEARD AT OTTAWA: November 10, 2016

REASONS FOR JUDGMENT

PARFETT J.

[1] Defence counsel requests a stay of proceedings on the basis that Adam Picard’s rights pursuant to s. 11(b) of the Charter of Rights and Freedoms[^1] has been infringed. For the reasons that follow, I find there has been a breach of this accused’s right to be tried within a reasonable time and a stay of proceedings will be entered.

Overview

[2] Adam Picard is charged with first degree murder. He was arrested on December 12, 2012 and the information was sworn on December 13, 2012.

[3] After a bail hearing held on May 23-24 and June 19-20, 2013, Mr. Picard was detained in custody.

[4] Mr. Picard subsequently fired his counsel. Six months and three counsel later, his current lawyer came on record.

[5] The preliminary hearing took place December 1–19, 2014, January 5–9, and 26–30, 2015. Mr. Picard was committed to stand trial on the first-degree murder charges On March 16, 2015.

[6] The trial dates were set on May 29, 2015. The trial is scheduled to conclude December 16, 2016 — 48 months after the information was sworn.

[7] Defence asserts that, pursuant to R. v. Jordan,[^2] the delay in this matter is above the presumptive ceiling of 30 months and, absent exceptional circumstances and any defence delay, the matter must be stayed. Crown argues that in the present case, there are discrete events and exceptional circumstances that justify any delay above the presumptive ceiling. Furthermore, there is significant delay attributable to the defence.

Factual background

[8] There is some common ground between counsel with respect to the delay in this matter. Both are agreed that the total delay is 48 months.

[9] Other facts upon which counsel agree are as follows:

• The accused has been in custody since his arrest on December 12, 2012;

• The accused fired his first counsel on July 18, 2013 and hired his present counsel on January 28, 2014. Regardless of how this period is characterized, some portion of it must be deducted from the total delay;

• The preliminary hearing date set was essentially the first available date;

• The first available date for pre-trial motions in Superior Court was February 1, 2016;

• Crown counsel were not available for those dates;

• The first dates available to all parties for pre-trial motions was September 6, 2016; and

• The first available date for a six-week trial after the conclusion of the pre-trial motions was November 7, 2016.

Legal Principles

[10] At the outset, the Supreme Court in Jordan noted that

[t]imely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance. Section 11(b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons “to be tried within a reasonable time”.[^3]

[11] The Supreme Court goes on to observe that

[o]ur system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative. Notwithstanding a delay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of the view that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing the current analytical framework governing s. 11(b). These difficulties have fostered a culture of complacency within the system towards delay.[^4]

[12] The Supreme Court chose therefore, to change the way in which delay is handled by the courts in order to make it easier to determine when delay has become unreasonable and also to encourage all the players in the system to work together to achieve efficiencies.

[13] The result is the establishment of a ceiling beyond which delay is presumptively unreasonable. For cases that are tried in the Superior Court of Justice that ceiling is 30 months. The period starts when an accused is charged with an offence and ends with the actual or anticipated end of the trial.[^5]

[14] There is a three-step analysis that is to be used:

1. First, calculate the total delay;[^6]

2. Second, deduct from the total any delay waived by defence or caused by the conduct of the defence;[^7]

3. Third, where the net total exceeds the presumptive ceiling, the onus shifts to the Crown to rebut the presumption of unreasonable delay by demonstrating that there are exceptional circumstances. If the Crown fails to do so, a stay must follow.[^8]

[15] There is a fourth step that applies to cases that were in the system as of July 8, 2016. Where the delay exceeds the presumptive ceiling established in Jordan, Crown can nonetheless invoke transitional, exceptional circumstances. Essentially, the Crown must show that the time the case has taken is justified on the basis of a reasonable reliance on the previous state of the law.[^9]

[16] Defence waiver of delay can be either explicit or implicit. For waiver to be found, it must be clear and unequivocal, with full understanding of the right and the effect of waiving that right.

[17] Defence conduct may take a variety of forms, but it includes:

• Conduct that causes or directly contributes to delay;

• Calculated tactics designed to delay the matter, such as frivolous applications or requests;[^10]

• Defence unavailability, so long as both the court and the Crown are ready to proceed. If they are not, the delay will not be found to be caused by defence.[^11]

[18] However, defence conduct undertaken legitimately and in order to respond to the charge falls outside the definition of defence delay.[^12]

[19] Exceptional circumstances are matters that fall outside the control of the Crown. These circumstances must be reasonably unforeseen or reasonably unavoidable and the Crown must not have been able to reasonably remedy the delays caused by those circumstances.[^13] There are two categories of exceptional circumstances: discrete events and particularly complex cases.[^14] What is particularly important is that when such a delay occurs, the Crown and the court must act to mitigate the effect of the delay.[^15]

[20] The Court in Jordan was careful to point out that “a typical murder” case will not be considered to be so complex that it would justify exceeding the presumptive ceiling.[^16] Another important point in the context of this application is that seriousness of the offence, on its own, cannot be considered as an exceptional circumstance.[^17]

[21] The Supreme Court was anxious to avoid the catastrophe that followed the release of R. v. Askov.[^18] In Ontario alone, tens of thousands of cases were stayed.[^19] Consequently, the Court established guidelines for dealing with cases that were already in the system when Jordan was released. While the new framework is relatively simple to apply, the transitional guidelines are not.

[22] For transitional cases, the Court has indicated that the new framework applies as a starting point for any delay analysis.[^20] However, the new framework is to be applied contextually and flexibly. The reason for this is obvious. As noted by the Court, “it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice.”[^21]

[23] For cases where, as here, the delay exceeds the presumptive ceiling, “a 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.” The Court reiterates that this assessment must be contextual and indicates that prejudice and the seriousness of the offence can inform whether the parties reliance on the previous state of the law was reasonable.[^22]

[24] Additionally, delay in transitional cases may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems.[^23]

[25] In R. v. Williamson,[^24] the Supreme Court fleshed out the considerations to apply in transitional cases. It suggested that relevant circumstances to consider in a contextual analysis include:

• The complexity of the case;

• The period of delay in excess of the Morin guidelines;

• The Crown’s response, if any, to any institutional delay;

• Defence efforts, if any, to move the case along; and

• Prejudice to the accused.[^25]

Application of principles

Total delay

[26] The parties are in agreement that the total delay is 48 months, which exceeds the presumptive ceiling.

Delay Attributable to Defence

[27] Mr. Picard did not waive any of the delay.

[28] However, Mr. Picard fired his counsel shortly after the decision in his bail hearing was released. Inevitably, this decision caused delay as Mr. Picard had to arrange for a new counsel to get on record, receive the disclosure, and review it. All of these steps duplicated the effort already made by his first counsel.

[29] Defence counsel conceded that any duplication of effort caused by the change in counsel should be characterized as defence conduct. In this case, he indicated that it took the present counsel just short of two months to receive and review disclosure; therefore, that period of time should be described as defence conduct.

[30] Crown counsel takes a completely different approach. Crown contends that the entire period from the date the information was sworn to the date the first counsel was fired — seven months — should be deducted as delay attributable to the defence. Crown argues that Mr. Picard was “singularly focused on obtaining disclosure for the purpose of pursuing an application for judicial interim release”.[^26]

[31] A review of the transcripts indicates that defence counsel was waiting for sufficient disclosure to permit them to “see the case for Mr. Picard to meet”.[^27] The bulk of the disclosure was delivered to defence in three packages, with the final package disclosed on April 2, 2013, approximately four months after Mr. Picard’s arrest.[^28] In March 2013, defence was already canvassing dates for a bail hearing, even though they did not yet have significant disclosure.[^29]Dates were available in April 2013. There is no information concerning how the date for the bail hearing was arrived at. However, it appears it was set some time before May 7, 2013.[^30] There was therefore approximately one month between setting the date for the bail hearing and when the bail hearing started.

[32] I see nothing wrong with defence counsel seeking disclosure in order to understand the nature of the case before they take any significant steps. In R. v. Morin,[^31] this early period was described as an intake period, where both Crown and Defence are getting organized to proceed with the matter. The provision of adequate disclosure is a crucial feature of that period.[^32] A reasonable intake period has been held to be between two and seven months, depending on the nature of the case.[^33] In the present case, that period took six months to complete.

[33] Moreover, there is nothing in the record to support the Crown’s contention that the accused was “singularly focused” on receiving disclosure before pursuing a bail hearing. Instead, it appears that defence was actually prepared to set a bail hearing date before they had received substantial disclosure.

[34] In my view, this period of time falls squarely within the type of delay that Jordan described as follows:

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence.[^34]

[35] Consequently, this initial time period cannot be attributed to defence and should not be deducted from the total time. Therefore, the delay attributable to the conduct of the accused is two months.

[36] This deduction reduces the delay to 46 months, which is nonetheless in excess of the ceiling. I therefore turn to a consideration of whether there are any exceptional circumstances. As set out in Jordan, exceptional circumstances encompass two categories: discrete events and particularly complex cases.

Exceptional circumstances

1. Discrete events

[37] The problem associated with the change in counsel was complicated by the fact that, not only did the second counsel retained by Mr. Picard discover that he had a conflict of interest, but so did the third counsel. It was only when Mr. Picard’s current counsel was retained that the matter got back on the rails.

How should this period be characterized and the delay calculated?

[38] Both counsel were in agreement that this delay should be characterized as discrete events and some portion of this time should be deducted, but they disagreed with how much. Defence suggested four months; Crown suggested six months.

[39] These events were both unforeseen and unavoidable. In keeping with the spirit of Jordan, when the third counsel was retained, the Crown sent an email to counsel outlining the names of the civilian witnesses so as to speed up the process of assessing whether there was a conflict.[^35] Consequently, only a short period of time was lost due to a conflict of interest in relation to the third counsel.

[40] In my view, the entire period from the end of July 2014 to the end of January 2015, when the current counsel was retained, should be deducted from the total delay. That delay is six months. As noted earlier, the conflicts of interest should be treated as discrete events and, in this case, the Crown took steps to mitigate the delay with respect to the third counsel and as such the entire period should be deducted.

2. Complexity of the case

[41] Crown counsel asserts that this case is particularly complex and therefore justifies the length of the delay. As noted in Jordan,

[p]articularly 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.[^36]

[42] In the present case, Crown counsel points to the following factors to support his contention that this case is particularly complex:

• Six months of investigation, involving two police services;

• 30,000 pages of disclosure;

• 2,800 photographs;

• Dozens of video-recorded witness statements;

• 6,800 pages of cell phone records;

• 25,000 text messages with content;

• 103,000 lines in Excel of subscriber records from Mr. Picard’s phone;

• 78 witnesses interviewed;

• 60 judicial authorizations; and

• Eight separate areas of expert evidence.[^37]

[43] At first blush, it would appear that the Crown can easily make the case for complexity. However, when looked at more closely, it does not stand up. It is undisputed that the investigation was extensive and thorough, leading to a large quantity of disclosure. However, disclosure does not, by itself, indicate a complex case.

[44] Of the 78 witnesses interviewed, 43 witnesses were anticipated to be called at trial. Only a fraction of the text messages would have been introduced into evidence. The same is true for the photographs. The vast quantity of cellphone records has been collated into several maps or charts, the validity of which would not have been challenged.

[45] When boiled down to its essence, this case is circumstantial. From a factual perspective, the jury would have had to decide who killed the deceased. It would also have had to determine what inferences it would draw from the evidence in order to make that factual finding. It would also have had to decide issues of credibility in relation to the two key Crown witnesses, who were acknowledged to be unsavoury, and the accused who would have testified that he was present at the scene when one or more unknown parties killed the deceased with his gun.

[46] The legal issues are also not complicated. There is a single accused and a single charge relating to a single event. Cause of death is not in issue. There is no claim of self-defence. There are no parties. There are no novel legal issues. If the jury accepted that Mr. Picard killed the deceased, intention would not have been an issue. The only legal issue of consequence for the jury would have been the determination whether the killing was planned and deliberate.

[47] There is no wiretap evidence. None of the judicial authorizations have ever been challenged. The expert evidence was largely undisputed. Defence had admitted, either in whole or in part, most of this evidence. Defence had also made extensive admissions in relation to much of the background information the Crown wished to lead. There were five statements made by the accused, but only two formed the subject of a voluntariness application. Defence brought applications in relation to after-the-fact conduct, hearsay, and the treatment of admissions. All the pre-trial motions (with the exception of this one) were argued over seven days, spread out over a two-week period, and the rulings were issued shortly after the conclusion of the arguments.

[48] In short, to the extent that any murder trial could ever be described as typical, this is it.

[49] Consequently, I do not find that this case is particularly complex.

[50] In the final analysis, eight months of delay is to be deducted from the total delay, leaving 40 months of delay. Given that this is a transitional case, the next step is to determine whether there are exceptional transitional circumstances that will justify the delay in this case.

Exceptional transitional circumstances

[51] I propose to use the factors set out in Williamson to structure this section of the analysis.

1. Complexity of the case

[52] I do not propose to reiterate the analysis I have already undertaken. Suffice it to say, this case is not a complex murder trial. At most, it could be described as a moderately complex case.

2. Morin guidelines

[53] In R. v. Morin, the Supreme Court set out a series of factors to be considered in assessing delay. They were:

• The length of the delay;

• Waiver of time periods;

• The reasons for the delay, including

o Inherent time requirements of the case;

o Actions of the accused;

o Actions of the Crown;

o Limits on institutional resources; and

o Other reasons for delay; and

• Prejudice to the accused.[^38]

[54] The length of the delay was to be calculated from the date the information was sworn to the date of the end of the trial.[^39] Any waiver could be explicit or implicit, but had to “be clear and unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver would have on those rights.”[^40]

[55] The Court observed that there are inherent time requirements for any case and that such periods should be treated as neutral. These inherent time requirements included any intake periods and the time to complete certain steps in the process, such as a preliminary inquiry.[^41]

[56] Actions of the accused included any actions that caused delay.[^42] Similarly, actions of the Crown could cause delay.[^43] The Court established that institutional delay in the range of 8 to 10 months in provincial court and 6 to 8 months between committal and the start of the trial in Superior Court constituted an acceptable allowance for limits on institutional resources.[^44]

[57] The final factor was prejudice to the accused. The Court noted that “prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn.”[^45] Furthermore, the Court indicated that actual prejudice could be shown where there was prejudice to the accused’s liberty interests as a consequence of pre-trial incarceration.[^46]

[58] In the present case, the length of the delay pursuant to the Morin analysis is 48 months.[^47] That delay can be broken down by court level. There was a total delay of 27 months in the provincial court, of which nine months was attributable to the inherent time requirements of the case, ten months to institutional delay, and eight months to Defence delay.

[59] In the Superior Court of Justice, the total delay is 21 months, of which five months is due to inherent time requirements, nine months to institutional delay, and seven months to Crown delay.

[60] After deducting delay caused by defence actions, the total delay is 40 months. Consequently, the delay in the present case is sufficient to make it vulnerable to a finding that it is unreasonable pursuant to a Morin analysis. According to that approach, the institutional delay should have been no more than 18 months, and it was 19 months. Given the accused is in custody, that delay should have been less. The prejudice to the accused is significant. The inherent time requirements were 14 months. That time period is neutral. However, the delay attributable to the Crown creates a further problem. That delay is seven months, and when the Crown delay and prejudice to the accused are factored in to the total delay, it becomes significantly longer than what is acceptable.

3. Crown’s response to delay

[61] It is this aspect of the delay that is the most troubling in this case. At the time this case arrived in the Superior Court, there had already been considerable delay. Dates for the pre-trial motions and the trial were set at the first pre-trial. The first available date to start pre-trial motions was February 1, 2016 — hence the nine months of institutional delay. However, Crown counsel were not available. Both counsel assigned to the case are senior Crown counsel carrying heavy caseloads. Depending on the specific time period, either one or both the Crown counsel were not available between February 1, 2016 and June 30, 2016. The Court and Defence counsel were available for the entire period.[^48] Traditionally, the Court does not schedule jury trial matters in July and August and, therefore, the next available date for the pre-trial motions was September 2016.

[62] Defence counsel was not satisfied with this date. They brought a motion in August 2015 to expedite the trial. Crown counsel argued that to expedite the trial dates would have the effect of requiring the removal of at least one of the assigned Crown attorneys. Crown counsel indicated that the assignment of Crowns to a case was a matter of prosecutorial discretion and the court ought not to interfere with it. The Court agreed. Consequently, the application was dismissed.[^49]

[63] Crown states that the issue of Crown unavailability should be treated as a neutral factor in this contextual assessment. They also argue that the delay is five months; Defence counsel says it is seven months. I find that it is seven months. Although matters are not usually set in the months of July and August, had the Crown accepted the earlier dates offered, this matter could have been concluded before the summer break. As a result, they must accept responsibility for the entire period of this delay.

[64] The Crown’s proposed treatment of this delay is consistent with the case law prior to Jordan.[^50] Crown relies on the case of R. v. Cody[^51] for its position that, in the transitional time period, Crown unavailability should continue to be considered a neutral factor. In Cody, the accused was charged with a variety of charges, including trafficking in cocaine and possession of a prohibited weapon. The total delay in that case was 60 months. The trial judge stayed the charges on the basis of a breach of s. 11(b). By the time the case reached the appellate court, the decision in Jordan had been released and, therefore, the appellate analysis proceeded on the basis that this was a transitional case.

[65] The only issue in that case that is relevant to this case is the issue of Crown unavailability. In Cody, the assigned Crown was not available on the first available date for trial and, consequently, there was a two-month delay between the first available date and the actual trial date.[^52] The Court noted that under the Jordan framework, this time period would be included in the calculation of delay. However, it went on to say the following:

To my mind, however, this situation invokes the transitional exception, for it would be unfair for this two-month delay to count against the Crown in the case. The Crown was relying on the law as it existed at the time, and had no notice that readiness delays would be assessed on a new standard which did not incorporate evaluating the reasons why a party is not ready to proceed. Had the Crown known of the new standard, the Crown may well have made other arrangements so that it could have accommodated the earlier date. Accordingly, under Jordan, this two-month delay is a transitional exception and deductible from the total.[^53]

[66] In the present case, the question to be answered is whether, in the specific circumstances of this case, it is reasonable for the Crown to rely on the previous state of the law. I do not believe it is.

[67] To start, the circumstances in Cody are distinguishable from those in this case. The delay due to Crown unavailability in Cody was a small part of the overall delay. It did not have a significant impact on the prejudice experienced by the accused, and there is no indication in Cody that defence had put the Crown on notice that delay was a particular concern.

[68] The contextual analysis done in R. v. Manasseri, supra, is more apt to the circumstances of this case. In that case, the Court of Appeal found that the delay should have been found unreasonable under a Morin analysis, that a significant portion of the delay resulted from procedural choices made by the Crown, and that the Crown failed to pay any real heed to the s. 11(b) interests of the accused.[^54]

[69] As noted earlier, the delay in the present case is sufficient to make it vulnerable to a finding that it is unreasonable pursuant to a Morin analysis. In addition, the accused has been in custody the entire time, making it highly likely there would be a finding of extensive actual prejudice. The Crown was put on notice as early as June 2013 that the clock was ticking and they had a positive obligation to proceed expeditiously. In the bail hearing decision, the judge noted:

The Crown Attorney’s Office must realize how important it is, in light of this ruling [to detain Picard] and of the amount of time that Mr. Picard has already spent in custody, that every effort be made to bring this case to trial as soon as is reasonably possible.[^55]

[70] Despite this warning, there is no evidence that Crown counsel was making any effort to find early dates. They were certainly aware of the fact the accused was in custody and time was passing. When current Defence counsel was retained, the Crown made reference to the 13 months the accused had spent in custody and the fact no dates had yet been set, but that was as far as it went.[^56]

[71] As noted earlier, when Defence counsel brought a motion to expedite the trial dates, Crown vehemently opposed that motion and insisted on its right to keep the original assigned Crowns on the file despite the length of the delay and the fact the accused was in custody. In my view, that decision was within their rights to make, but it was also unreasonable in the particular circumstances of this case.

[72] Pursuant to the transitional framework set out in Jordan, the onus is on the Crown to demonstrate the time expended to bring the case to a conclusion is justified by the parties’ reasonable reliance on the earlier framework. I do not find that in this case that reliance was reasonable. This case provides a further example, as in Manasseri, of the Crown making choices that essentially paid no heed to the accused’s s. 11(b) rights.

[73] A further aspect of the contextual assessment of delay is the consideration of delay in the context of a jurisdiction with significant institutional delay problems given that Crown counsel’s behaviour is constrained by these systemic delay issues.[^57]

[74] Counsel advised me that the institutional delay in Ottawa within the provincial court in 2014 was approximately 13 months and, in the Superior Court in 2016, it is 10 months. Clearly these delay periods exceed the Morin guidelines. These numbers do not take into consideration any time periods due to inherent time requirements. If I add back in the same inherent time requirements used in the previous analysis, the total delay in this case ought to have been no more than 39 months. It is close. However, this fact does not persuade to change my view with respect to the issue of reasonable reliance on the state of the law prior to Jordan. These time frames are for all accused, whether they are in or out of custody. Accused persons who are in custody ought to be able to get their matters heard in a shorter period of time than the average. The fact that Mr. Picard was only able to get his matter heard in an average amount of time, despite the overall delay and his incarceration, only underlines how important it was to expedite this case.

[75] Crown was required to be vigilant that Mr. Picard’s s. 11(b) rights were not compromised. He was in custody. He had chosen to fire his first counsel and that created delay. But the Crown could not rely on that delay forever to justify their lack of effort to fast track this matter. Ultimately, far from making every effort to move the matter forward, they chose very deliberately to ignore the delay in favour of Crown discretion.

4. Defence efforts to move the case along

[76] On the other hand, Defence counsel was making a real and concerted effort to have the matter dealt with expeditiously. However, Crown counsel were standing on their right to exercise their discretion in the assignment of Crowns to the file in the face of this effort and the very real prejudice it caused the accused. A third of the 21-month delay in Superior Court is attributable to this procedural choice made by the Crown.

5. Prejudice to the accused

[77] The final step in the analysis is to address the issue of prejudice. As has already been pointed out more than once in this decision, Mr. Picard has been in custody the entire time. There is no doubt that he has suffered significant prejudice.

Conclusion

[78] This case involves the most serious charge in the Criminal Code: first degree murder. Given that this is a transitional case, some attention must be paid to that fact. In determining how to weigh this factor in this case, I turn to the Supreme Court’s comments on this subject in Williamson, supra:

[A] person’s right to a trial within a reasonable time cannot be diminished based solely on the nature of the charges he or she faces. As this Court wrote in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, “Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences.” Many appellate courts across the country, including this one, have stayed serious charges, even when the total delay (minus defence delay) was less than that in this appeal.[^58]

In this regard, we note that s. 11(b) guarantees the right “to be tried within a reasonable time.” It does not admit of gradients of reasonableness where the charges are serious. For example, it does not guarantee the right to be tried within “somewhat longer” than a reasonable time, or within a time that is “excessive but not so long as to be clearly unreasonable” when the charges are serious. Delay is either unreasonable, or it is not.[^59]

[79] I am well aware that, in deciding to stay these charges, the family of the deceased in this matter will not see justice done as they would want. Moreover, the accused himself may find this to be a hollow victory. A stay of proceedings is not the same as a verdict of not guilty.

[80] However, I cannot but emphasize that the more serious the charges, the more the justice system has to work to ensure that the matter is tried within a reasonable time. The thread that runs through the present case is the culture of complacency that the Supreme Court condemned in Jordan.

[81] Everyone, not just the Crown, was content with trying this matter within the time for delay that has become the norm in Ottawa. Normal delay is not acceptable when an accused is in custody. Delay beyond that prescribed for the past 24 years is not acceptable regardless of whether the accused is in custody or not.

[82] In the present case, the justice system has failed this accused and the public. Consequently, a stay of proceedings will be entered.

Madam Justice Julianne Parfett

Released: November 15, 2016

APPENDIX “A”

11(b) Application

Timeline of Delays

Court

Dates

Length of Delay

Characterization

Attribution

Totals

Ontario Court of Justice

December 12, 2012 to July 18, 2013

7 months

intake, includes 1 month to set bail hearing date

Neutral/ Institutional

July 18, 2013 to March 26, 2014

8 months

change of counsel

Defence

March 26, 2014 to December 1, 2014

9 months

institutional

Institutional

December 2014 to March 13, 2015

3 months

preliminary hearing - inherent

Neutral

Inherent:

9 months

Institutional:

10 months

Defence:

8 months

Totals

27 months

Court

Dates

Delay

Characterization

Attribution

Totals

Superior Court of Justice

March 13 to May 29, 2015

3 months

intake

Neutral

May 29, 2015 to February 1, 2016

8 months

institutional

Institutional

March 2016 to September 2016

7 months

Crown unavailability

Crown

September 2016 to November 2016

2 months

PTMs and trial - inherent

Neutral

Inherent:

5 months

Institutional:

9 months

Crown:

7 months

Totals

21 months

CITATION: R. v. Picard, 2016 ONSC 7061

COURT FILE NO.: CR-12-7874

DATE: 2016-11-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

ADAM PICARD

Applicant

REASONS FOR JUDGMENT

Parfett J.

Released: November 15, 2016

[^1]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11.

[^2]: 2016 SCC 27, 398 D.L.R. (4th) 381.

[^3]: Jordan, at para. 1.

[^4]: Jordan, at para. 4.

[^5]: Jordan, at para. 47; R. v. Manasseri, 2016 ONCA 703, at para. 301.

[^6]: Jordan, at para. 46

[^7]: Jordan, at paras. 47, 60, 66.

[^8]: Jordan, at paras. 47, 68.

[^9]: Jordan, at para. 96.

[^10]: Jordan, at para. 63

[^11]: Jordan, at para. 64.

[^12]: Jordan, at para. 65.

[^13]: Jordan, at para. 69.

[^14]: Jordan, at para. 71.

[^15]: Jordan, at para. 75.

[^16]: Jordan, at para. 78.

[^17]: Jordan, at para. 81.

[^18]: 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199.

[^19]: Jordan, at para. 92.

[^20]: Jordan, at para. 95.

[^21]: Jordan, at para. 94.

[^22]: Jordan, at para. 96.

[^23]: Jordan, at para. 97.

[^24]: 2016 SCC 28.

[^25]: Williamson, at paras. 26–30.

[^26]: Exhibit E, tab 1, at para. 2.

[^27]: Exhibit A1, tab 3.

[^28]: Exhibit E, tab 3, at para. 4.

[^29]: Exhibit E, tab 2, at 7A.

[^30]: Exhibit A1, tab 12.

[^31]: 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771.

[^32]: Morin, at p. 792.

[^33]: See R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.), at para. 13; R. v. Adam, 2006 BCSC 350, [2006] BCTC 350, at paras. 144–46; R. v. Carter, 2005 CanLII 47768 (ON SC), [2005] O.T.C. 1117 (S.C.), at para. 118.

[^34]: Jordan, at para. 65.

[^35]: Exhibit E, tab 2, at 29A.

[^36]: Jordan, at para. 77 [emphasis in original].

[^37]: Exhibit E, tab 1, at para. 102.

[^38]: Morin, at p. 787–88.

[^39]: Morin, at p. 788.

[^40]: Morin, at p. 790.

[^41]: Morin, at pp. 791–93.

[^42]: Morin, at p. 793.

[^43]: Morin, at p. 794.

[^44]: Morin, at pp. 798–99.

[^45]: Morin, at p. 801.

[^46]: Morin, at p.802.

[^47]: See Appendix A for the specific calculations of delay.

[^48]: Exhibit A3, tab 49.

[^49]: R. v. Picard, 2015 ONSC 5694.

[^50]: See R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23; R. v. Tran, 2012 ONCA 18, 287 O.A.C. 94, at para. 32.

[^51]: 2016 NLCA 57.

[^52]: Cody, at para. 34.

[^53]: Cody, at para. 38 [citations omitted].

[^54]: Manasseri, at paras. 365, 376, 360.

[^55]: 2013 ONSC 4384, at para. 49.

[^56]: Exhibit A2, tab 30.

[^57]: Jordan, at para. 97.

[^58]: The footnote associated with this paragraph has not been repeated here. However, I note two things: none of the

cases cited involved a homicide, but all of the cases involved less delay than in the present case.

[^59]: Williamson, at paras. 34–35 [citations omitted].