R. v. John Porter, 2016 ONSC 7173

CITATION: R. v. John Porter, 2016 ONSC 7173

COURT FILE NO.: 11631

DATE: 2016/11/18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

John Porter

Defendant

Gary C. Fowler, for the Crown

Carolyn Conron, for the Defendant

HEARD: November 14 and 15, 2016

RULING ON s. 11(b) of the Charter

Justice r.m. pomerance:

1John Porter is charged with one count of accessing child pornography in the form of a digital file, contrary to s. 163.1(4.1) of the Criminal Code. The offence is said to have occurred between December 20, 2012 and March 17, 2013. The accused was charged on March 27, 2013. His trial is scheduled to commence on December 19, 2016. He argues that the delay from the time of charge to the conclusion of trial is unreasonable and violates his rights under s. 11(b) of the Charter. On the basis, he seeks a stay of the proceedings.

2The crown resists the application for a stay, arguing that much of the delay is attributable to the defence or should otherwise be deducted from the overall time period.

3The legal landscape changed dramatically with the release of the Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27 in July, 2016 and the companion decision in R. v. Williamson, 2016 SCC 28. The s. 11(b) analysis has been recalibrated to account for, and rectify, perceived complacency about delay. Whereas the old approach balanced several factors, the new approach sets a presumptive ceiling beyond which delay will be presumed to be unreasonable. The ceiling for an indictable offence in the superior court is 30 months from the time of charge to the actual or anticipated end of the trial.

4Various courts have applied the Jordan framework in the months since the decision was rendered. These include R. v. Manasseri 2016 ONCA 703; R. v. Coulter, 2016 ONCA 704; R. v. Gandhi, 2016 ONSC 5612, each of which I have carefully considered.

5In this case, the total delay in this case is approximately 45 months, some 15 months beyond the presumptive ceiling. The question is whether an analysis of the various time periods will result in any deductions, and further, whether those deductions will bring the total delay below the ceiling. In addition, whether above or below 30 months, I must determine whether the delay is nonetheless reasonable or unreasonable in all of the circumstances. Delay above 30 months may, in exceptional circumstances, to be established by the crown, be reasonable. Delay below 30 months may, in some circumstances to be established by the defence, be unreasonable.

6This case was in the system long before Jordan. Therefore, it is to be treated as a transitional case. While Jordan heralds a new era, the Supreme Court of Canada was careful to ease the transition from one regime to another. The catastrophic fall-out from the earlier Askov decision, in 1990, confirmed that legal systems and legal cultures cannot change on a dime. In Jordan, the court acknowledged the difficulty of using new rules to judge past actions. Actions taken pre-Jordan were based on the law pre-Jordan. Actors in the justice system relied on the law as it then existed. If that reliance was reasonable, it may excuse delay that would not be tolerated in the post-Jordan universe.

7In other words, the new framework will not apply strictly to cases of the transitional variety. This is not to say that delay in prior cases is more acceptable. It is only to say that parties could not be expected to govern themselves by rules that did not yet exist. There can be little doubt that, going forward, practices will change. But, for cases in the rear view mirror, the analysis must ­­­be contextually sensitive to the law and the legal culture that existed at the relevant time.

8As it was put in Jordan:

96First, 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. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.

103We echo Lamer J.’s remarks. For cases already in the system, the presumptive ceiling still applies; however, “the behaviour of the accused and the authorities” — which is an important consideration in the new framework — “must be evaluated in its proper context” (Mills, at p. 948). The reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances. Reliance on the law as it then stood is one such circumstance

9These passages are important in this case, as the outcome is heavily dictated by context, and the reasonable expectations of the parties at the relevant time. I will elaborate upon this in the reasons that follow.

10I will begin by outlining the chronology of proceedings. I will then turn to an analysis of the various time periods, using the Jordan framework with appropriate transitional modifications.

The Chronology

The Ontario Court of Justice

11Mr. Porter was charged on March 27, 2013. On the first appearance, on May 16, 2013, the defence sought an adjournment to allow for a resolution meeting with the crown. The matter was adjournment to May 30, 2013.

12On May 30, 2013, defence counsel indicated that, while the crown had “graciously provided a trial readiness certificate”, she required some time to meet with her client. The defence asked that the matter go over for two more weeks, and the crown suggested that it be returnable on June 27, 2013, as the crown was making further inquiries of the investigating officer.

13On June 27, 2013, the defence sought a further adjournment as a resolution meeting was scheduled with the crown on July 2, 2013. Counsel asked that the matter come back on July 11, 2013, while the crown suggested that it be adjourned for a bit longer, noting that “there’s been some development about one of the charges”. Accordingly the matter went over to July 18, 2013.

14On July 18, 2013, defence counsel advised the court that a resolution meeting had occurred with the crown, and that “there’s a few things that I have to do…”. She asked that it go over to August 15, 2013.

15In the meantime, on August 1, 2013 defence counsel served the crown with an alibi notice, setting out Mr. Porter’s whereabouts at the time that the child pornography was allegedly accessed from his computer. The crown, having received the alibi notice, directed the police to investigate.

16When the matter came back before the court on August 15, 2013, defence counsel advised the court that she had “provided my friend with some information on an alibi defence and I’m not sure how long it will take to look into that”. The crown advised that it had 14,000 more pages of disclosure for the defence review. Defence suggested that there be “perhaps a lengthy adjournment”. The matter was put over to September 26, 2013.

17The new disclosure – consisting of 14,000 pages – was disclosed on September 25, 2013. When the matter was back in court the following day, defence advised that she needed time to review the new disclosure and get instructions. She suggested a return date of November 7, 2013. The court expressed some concern about the reasonableness of the time frame. Crown counsel advised that there was a judicial pre-trial at which the alibi was discussed. Defence counsel said: “Yes. We’re moving it along. A lot of it’s going to depend on what’s in the disclosure.”

18On October 24, 2013, defence asked for additional disclosure from the crown, including a C4All analysis of the accused’s computer and a request that police interview a potential alibi witness a second time. On November 7, 2013, defence counsel advised the court that “this is a fairly complicated matter”. She had been engaged in resolution discussions with the crown and was waiting for the C4All analysis to be disclosed. It was suggested that the matter go over for three weeks, to November 28, 2013.

19On November 28, 2013, the defence asked once again for an adjournment, so that she could meet with the assigned crown about trial setting. She asked that the matter go over to December 19, 2013 “to set date”. On December 19, 2013, the matter was set for a one day preliminary hearing, to take place on May 27, 2014.

20On March 20, 2014, the crown sought an adjournment of the preliminary inquiry date, due to the unavailability of the assigned lawyer. The new date was July 9, 2014. It was shortly before the preliminary inquiry, on June 23, 2014, that the defence requested disclosure of the information to obtain the warrant to search the accused’s computer (the ITO). The ITO was disclosed to the defence on July 8, 2014.

21On July 9, 2014, the preliminary inquiry took place, with a consent committal. This was a “discovery” preliminary inquiry, at which four officers testified about the search of the accused’s computer. The bulk of the evidence concerned the search, though there was some passing reference to the accused’s proposed alibi.

The Superior Court of Justice

22The matter first came before the Superior Court in Assignment Court on August 12, 2014. Defence counsel sought an adjournment to the next Assignment Court on September 9, 2014.

23On September 9, 2014, a judicial pre-trial (JPT) was scheduled for September 22, 2014. On that date, the JPT was cancelled due to the failure of the defence to file the requisite pre-trial form, Form 17. In assignment court on October 14, 2014, a new JPT date was set for October 27, 2014.

24The JPT took place on October 27, 2014. Thereafter, the defence requested several adjournments based on the fact that counsel was engaged in resolution discussions with the crown. Specifically, on each of November 18, 2014 December 16, 2014 and January 13, 2015, the defence requested a one month adjournment of the case because of resolution discussions. The crown consented to these requests. At that point, resolution discussions were focused on whether the police violated the accused’s rights when they searched his computer. The defence was hoping that the crown would withdraw the charge on the basis that the search warrant was invalid. The crown was considering its position.

25On January 13, 2015, when the third adjournment was requested, the court expressed some concern about the delay. Defence had advanced a “joint request” that the matter be adjourned to the next month’s Assignment Court. She advised that the crown “needs to review preliminary hearing transcripts”. The presiding judge asked defence counsel to tell crown counsel that “I would really like to move this along next time, either set a date for resolution or set a date for trial”.

26At the next Assignment Court, on February 10, 2015, defence counsel advised the court that she was told by the crown that there would be no resolution. The crown had decided to argue the s. 8 motion. Defence counsel asked that there be a further judicial pre-trial before a date was set for the charter issues. That JPT was set for February 23, 2015, with a return date in assignment court of March 10, 2015.

27On March 10, 2015, the court was ready to set two days for the charter s. 8 motion. The court asked defence counsel whether the Charter motion would be “dispositive” and she said “yes”. This signaled to the court and to the crown that there would be no need for a trial beyond the Charter application. If the application was successful, the crown would not pursue the case; if it was unsuccessful, the defence would plead guilty or decline to contest the crown’s case. In fact, this was not the case and additional trial time was necessary once the Charter motion was dismissed.

28On March 10, 2015, the court offered October 15 and 16, 2015 as dates for the Charter motion, but the crown was unavailable on those dates. The matter was accordingly set for December 3 and 4, 2015. Defence counsel advised that she was available on those dates, as did the crown.

29Some months later, defence counsel realized that she was not, in fact, available on December 3 and 4, 2015. She was pregnant and was due to deliver her baby on November 7, 2015. As such, she would not be able to attend court in early December. The parties brought the matter forward on October 29, 2015 in order to adjourn the December motion and canvass new dates. There is no indication on the record as to why the matter was not brought forward earlier.

30On October 29, 2015, defence counsel advised that she would be back from her pregnancy leave and able to appear on the matter in March. However, there were “no court dates in March”. Defence counsel was “engaged in a murder trial for the month of April”. As for May, she advised that, while counsel had canvassed dates in May, none of the dates available to counsel were available to the court. The first dates available to both counsel and the court were June 29 and 30, 2015. The Charter motion was set to be heard on those dates.

31At this time, there was still no indication from the defence that an unsuccessful charter motion would necessitate a trial. Crown counsel and the court were still under the impression that the charter issues would be “dispositive”.

32On May 19, 2015, counsel appeared to address application readiness. The crown advised that he had not yet received the defence materials. It was therefore agreed that a second application readiness hearing would take place on June 2, 2016. Again, defence counsel did not say anything about needing to schedule a trial if the Charter motion was unsuccessful. .

33On June 2, 2016, counsel confirmed that the June 29, 2016 Charter application was ready to go. Again, defence counsel did not speak about the potential need for trial dates.

34The application was argued on June 29 and 30, 2016 and the decision reserved by the trial judge until September, when he dismissed the motion. On June 30, 2016, crown counsel wrote the following email to defence counsel:

Hi Carolynn,

This matter has been adjourned to September 21, 2016 for a decision.

Further to our discussion at Court yesterday, I write to confirm that, in the event of no stay or exclusion of evidence, Mr. Porter intends to set a trial date and file an Application under s. 11(b) of the Charter. The inference is that Mr. Porter is suffering from the delay of his trial. I write to suggest that, Mr. Porter bring the matter forward ASAP to set trial dates which could be abandoned if necessary. It seems to me that the current course only maximizes the delay.

35The matter was brought forward on July 12, 2016 to set the necessary dates for trial, in the event that the Charter application was unsuccessful. The court set trial to commence on December 19, 2016, for four days.

Analysis

Summary of Jordan

36In R. v. Coulter, 2016 ONCA 704, Gillese J.A. set out a step by step summary of the new Jordan framework:

A. The New Framework Summarized

34Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

35Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

36Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

37If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

38Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

39If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

40If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

41The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).

The Issues in this Case

37In this case, various factors, beyond institutional delay, contributed to the delay in bringing Mr. Porter to trial. They include the following:

a) Defence adjournments;

b) The alibi notice;

c) The joint decision of crown and defence to not set a date in the OCJ pending resolution and other pre-trial discussions;

d) The joint decision of crown and defence to not set a date in the SCJ pending resolution discussions;

e) Defence counsel’s personal circumstances (pregnancy); and

f) Defence counsel’s erroneous assertion that the Charter motion was “dispositive” and that no trial dates beyond the motion were required.

Defence Delay

38In Jordan, the Supreme Court of Canada affirmed that delay attributable to the defence must be subtracted from the total delay in assessing whether s. 11(b) has been infringed. As has long been observed: “The defence should not be allowed to benefit from its own delay-causing conduct”. (para. 60).

39While the court in Jordan affirmed the concept of defence delay, it fine-tuned and limited the types of circumstances that are defence delay. Following Jordan, defence delay has two components: 1) waiver; and 2) delay caused solely by the conduct of the defence.

Waiver

40The law of waiver remains much as it has been. Waiver can be explicit or implicit but in either case must be clear, informed, and unequivocal. Waiver is not a meaningful element of this case. The accused never expressly waived his rights under s. 11(b). The crown argued that the court should imply waiver from some of the defence actions in this case. However, implicit waiver is a difficult threshold to meet. The court must be satisfied that the accused had full knowledge of his or her rights as well as the effect that waiver would have on those rights. The record in this case does not permit of such a finding.

Delay caused solely by the conduct of the defence: Scheduling

41The second type of defence delay is delay caused solely by the conduct of the defence. This will include scheduling discussions in which the crown and court are available but the defence is not. It will also include situations where the defence has failed to comply with the rules. For example, in this case, defence counsel failed to file a Form 17 at the first judicial pre-trial in Superior Court, necessitating an adjournment of the pre-trial. That is clearly delay caused solely by the conduct of the defence. So too is the request of the defence to adjourn the first assignment court appearance in the Superior Court. In those instances, the crown and court were prepared to proceed and it was the conduct/request of the defence that created the resulting delay.

Delay caused solely by the defence: defence proceedings

42Jordan instructs that the time taken for defence applications and other defence proceedings will not generally qualify as defence delay. It will not usually be deducted from the total time period. Defence applications are to be counted in determining whether the total delay exceeds 30 months.

43This is a departure from earlier approaches under s. 11(b). As noted by Code J. in R. v. Ghandi, 2016 ONSC 5612, there were two streams of prior authority:

21. … Prior to Jordan there was a substantial body of s. 11(b) case law holding that the time required to conduct certain kinds of pre-trial motions and pre-trial proceedings should be characterized as defence delay. In R. v. Morin, supra at pp.17-18, Sopinka J. stated that “change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants etc. “were all examples of delay caused by voluntary actions of the accused” …

22. A slightly different approach emerged in more recent authorities in Ontario to the effect that the time required for the pre-trial motions should “ordinarily” be treated as “part of the inherent time requirements of the case” and therefore entitled to “neutral weight” in the s. 11(b) calculus. Only where defence motions were “frivolous and served no legitimate purpose” or where the crown “acted arbitrarily or in bad faith” in pre-trial proceedings, would delay be attributed to one side or the other. See R. v. Schertzer et al., (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 at paras. 113-118 (Ont. C.A.) ; R. v. Emanual, 2012 ONSC 1132 at paras. 16-25.

44I agree with Code J. that, “the exact impact of Jordan on the above lines of authority…is not entirely clear and it will inevitably emerge slowly and incrementally from the post-Jordan jurisprudence”.

45Three points emerge from the Jordan decision. First, consistent with previous case law, defence applications that are frivolous, or seen as strategic tactics to run the clock and delay the trial, will be seen as defence delay. As explained in para. 63 of Jordan:

63…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.

46Secondly, it is clear that defence proceedings that are not frivolous or calculated delay tactics should not be deducted as defence delay. Some earlier authority characterized such proceedings as neutral delay, that did not count against either the crown or defence. This has changed with Jordan. The time taken for legitimate defence proceedings will be included in the calculation of the 30 month ceiling. It will not be seen as neutral delay. To this extent, that time, practically speaking, will count against the state. The more time taken by defence proceedings, the more difficult it will be for the state to fit the case within 30 months. The Supreme Court acknowledged this, but took this into account when setting the ceiling at 30 months.

47This is clear from paras. 65 and 66 of Jordan:

65To 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. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

66To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence’s conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay. [emphasis added]

48The Jordan analysis does have some flex when it comes to defence motions. If defence applications are particularly complex and/or lengthy, it may be open to the crown to plead exceptional circumstances, in order to justify a delay over 30 months.

49“The presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling”[emphasis in original]( para. 81 of Jordan). Exceptional circumstances can arise from a discrete event such as illness, or other unexpected event at the trial. Exceptional circumstances may also flow from trial complexity. Complexity does not flow from the gravity of the charge, but rather, from the nature of the evidence or the issues at the trial. As it was put in para 77 of Jordan:

…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.

50Therefore, in a case in which defence applications take many months, or inject an unusual degree of complexity into the proceedings, there may be scope for deducting time periods based on exceptional circumstances.

51The third point to be taken from Jordan is less clear, but nevertheless important. The court did not purport to exhaustively define the ambit of defence delay. It left open the possibility that other types of defence conduct might warrant deduction of time periods. After discussing what does and does not qualify as defence delay, the Court cryptically observed in para. 64 that: “It will of course be open to trial judges to find that other defence actions or conduct have caused delay”. It is not clear what those other defence actions will consist of. These situations will be addressed on a case by case basis as they come before the courts. The point to be taken is that defence delay is a limited, but not a closed, category. It may take on girth as novel situations arise.

Alibi

52How do the principles governing defence delay affect alibi? In this case, considerable time was devoted to the investigation of the defence alibi notice, the disclosure of new material, the review of the new disclosure, and the defence request for further investigation. The alibi notice was served on the crown on August 1, 2013, some five months after the charge was laid. The crown acted responsibly by quickly directing a police investigation into the circumstances identified by the accused. By September 25, 2013, the Crown had 14,000 pages of additional disclosure flowing from the investigation of the alibi. The defence required time to review this new disclosure and came back with a request that police re-interview one of the alibi witnesses. The alibi issues extended through to November and perhaps even as far as December 19, 2013, when the date for the preliminary hearing was set.

53The alibi notice in this case reflects a legitimate step taken in defence of the charges. It is not frivolous and it is not a strategic delay tactic. The crown argued that the alibi in this case was weak, but did not go so far as to say it was frivolous. I decline to comment on the merits of the defence, as this is an issue for the trial. Suffice to say that there is no suggestion that the alibi was advanced in bad faith. Certainly, the crown took it seriously, and responded by directing an investigation into the circumstances.

54While the alibi notice was a legitimate step taken by the defence, alibi is in some respects different than other defence issues. Unlike other challenges to the case for the prosecution, an alibi is usually within the exclusive knowledge of the defence. In this case, the crown had no way of anticipating that an alibi would be raised. It could not prepare for alibi, or investigate it, until the notice was served. Of course, the crown must always prove that the accused was the person who committed the actus reus of the offence. The crown must, in every case, prove that the accused was present at the time and place of the crime, or otherwise had opportunity to commit it. An alibi is designed to cast doubt on that aspect of the crown’s case. But also it injects a new dimension into the case to be tried. It introduces a factual element from outside the four corners of the crown’s case. The crown must not only prove that the accused had the opportunity to commit the crime; the crown must disprove a positive assertion that he or she did not have such opportunity. Until the alibi is identified, the crown has no way of knowing what it might have to disprove. Similarly, unless there is reason to anticipate the alibi, the crown has no way of knowing what it might have to investigate. The existence of alibi, the content of alibi, and the timing of disclosure of alibi, are all within the control of the defence.

55To this extent, there may be reason to analyze alibi differently than other defence issues. Specifically, the alibi in this case, which was unanticipated, and which was not served on the crown until close to four months after the charge, warrants some adjustment to the total period of delay.

56How might that adjustment be effected? There are two possibilities. The first is to apply the residual category of defence delay left open by the court in Jordan. Conceivably, this could be seen as “other defence actions or conduct” that constitute defence delay. But I believe that the concept of exceptional circumstances is a better analytical fit.

57Exceptional circumstances, as defined in Jordan, include discrete events which are unforeseen and unavoidable. paras 73 and 74:

73Discrete, 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.

74Trial 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.

58The alibi notice in this case was both unforeseen and unavoidable. It contributed to delay, just as a recanting witness might change the complexion of a case. To characterize it as an exceptional circumstance is also preferable in that it does not purport to assign blame for delay. In the wake of Jordan, defence delay tends to have a pejorative quality. Time will count as defence delay where the defence is unavailable for dates, or brings frivolous motions, or otherwise causes delay in a non–legitimate way. The point in Jordan was that defence delay does not usually encompass legitimate defence positions.

59The alibi notice in this case was clearly a legitimate defence position, but one that could not be anticipated by the crown. It is for this reason that I characterize the alibi in this case as an exceptional circumstance.

60Having called it an exceptional circumstance, I must assess whether the crown made reasonable efforts to respond to the unexpected contingency. I find that the crown did. It took reasonable steps to respond to the alibi notice and to keep the matter moving through the courts. After the notice was served, the crown acted with dispatch to direct an investigation, and it too was carried out in an efficient fashion. The defence reasonably required time to review the new disclosure and the crown responded to requests for additional investigation. In the circumstances of this case, I find that it is open to the crown to seek deduction of the time period pertaining to the alibi notice from the total period of delay.

61If I am wrong about the alibi notice, then I would reach the same conclusion about this time period, based on the pre-trial discussions that were being carried out by the crown and defence. I will turn to that issue now.

Resolution and other pre-trial Discussions

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

63During this time, counsel were required, by court protocol, to engage in joint discussions before setting dates in the Ontario Court of Justice in London. The London protocol was issued in 2006 by then Local Administrative Justice Kathleen McGowan. It provided as follows:

PROTOCOL FOR SETTING TRIAL/HEARING DATES

1. On all matters prior to setting a trial date all counsel should meet with a designated Crown counsel to consider possible resolutions, narrowing of trial issues, reducing the number of witnesses and time required for the trial/hearing. The Crown Attorney must provide sufficient meeting times to enable this process. [see attached schedule]

2. The Trial Coordinator will continue to prearrange trial dates in Courtroom A at 8:30 a.m. daily. No trial date will be offered until both counsel have completed the Certificate of Trial Readiness in the attached form as well as the statement of issues required for all preliminary hearings.

3. The certificate of readiness will be attached to the information and the court will give priority to those cases. All others will be dealt with at the discretion of the presiding Justice of the Peace.

64This protocol required that crown and defence counsel discuss resolution and/or other issues that might streamline the trial. Following these discussions, counsel would jointly complete a Certificate of Trial Readiness. It was only after that document was filed that the court would offer a date for the proceedings.

65There is much to be said for the requirement that counsel discuss issues before setting a date for a judicial proceeding, be it a preliminary inquiry or a trial. This is a vital step toward defining the real issues in a case. This, in turn, is critical to the determination of how much court time is required for the proceeding. Similarly, early resolution discussions can promote timely pleas and obviate the need to tie up judicial resources unnecessarily. Whether these discussions take place in the context of a judicial pre-trial, or a non-judicial pre-trial, they are an integral element of effective case management. They honour the principles in Jordan to the extent that they allow for informed allocation of judicial resources.

66Therefore, when considering the time frame between August 15, 2013 and December 19, 2013, it is important to consider the context at play. The system not only encouraged, but required, that counsel engage in meaningful discussions before setting a date. In this case, those discussions continued for some time. A preliminary Certificate of Trial Readiness was prepared by the crown on May 20, 2013. When marked as an exhibit on the s.11b hearing the document had the word draft written on it. It is not clear who wrote the word draft, or when it was written. The fact that this document was filed means that, technically, counsel might have been able to set an earlier date for the preliminary hearing. But it was acknowledged during argument that this preliminary document did not accurately reflect the case. it did not account for the alibi notice, or the s.8 motion that was to be forthcoming. It was a work in progress. The second Certificate, which was filed in December 2013 was the more meaningful document. Once it was filed, a date was set for the preliminary hearing.

67During argument on the s. 11(b) motion, defence counsel argued that the crown had the obligation to bring the case to trial, and that the crown should have set a date despite the ongoing discussions. I do not agree. First, the adjournments were requested by the defence. In effect, defence counsel is saying that the crown should have opposed the very adjournments that she sought on behalf of the accused, and that the failure to do so offends s. 11(b). Secondly, within the prevailing legal culture, the crown would have reasonably expected that the case would not be imperiled by the adjournments. On the basis of the law at the time, the crown would have understood that the adjournments would be either attributed to defence delay, or considered neutral time. No one would have anticipated that a crown consent to a defence adjournment would count against the state on a subsequent delay hearing. Finally, even if the crown insisted on setting a date while discussions were ongoing, there is no guarantee that the court would have acceded to this request, given the protocol in place.

68This is a transitional case, commanding a contextually sensitive analysis. Consistent with the context, and the protocols in place, I find that discussions that pre-dated setting of a date for the preliminary hearing should not count against the state. This time frame should be deducted from the total period of delay.

69The situation in the Superior Court of justice was slightly different, in that, once a judicial pre-trial was held, a date could be set for trial, even if there were ongoing resolution discussions. However, both crown and defence agreed that a date should not be set until those resolution discussions were completed. The defence had served the crown with materials on the s. 8 challenge and the crown was considering whether it should withdraw the case on this basis. Again, it was reasonably expected by both parties that the time taken for resolution discussions would not count against the state under s. 11(b). Therefore, as in the Ontario Court of Justice, the accused’s requests for adjournment in the superior court of justice, to facilitate resolution discussions, should be deducted from the total period of delay.

Defence Counsel’s Pregnancy

70Counsel for Mr. Porter acknowledged that the delay flowing from her pregnancy and the birth of her child is either defence delay, or alternatively, an exceptional circumstance. Either way, it is acknowledged that the delay attributable to this event should be deducted from the total period of delay.

71How much time does this entail? Initially, the s. 8 motion was scheduled to be heard on December 3 and 4, 2015. The dates were set during an appearance on March 10, 2015. The matter was brought forward on October 29, 2015, when it was apparent that Ms. Conron would be giving birth on November 7 and would not be available in December. On October 29, 2015, the s. 8 motion was moved to June 29 and 30, 2016.

72The motion was to be heard on December 3 and 4 2015. As a result of counsel’s pregnancy, it was moved to June 29, and 30 2016. It would seem to follow that the period between December 3, 2015 and June 30, 2016 should be deducted.

73Defence argues that this period should not be attributed, in its entirety, to the defence. Ms. Conron pointed out that, back on March 10 2015, the court had offered October dates for the hearing of the s. 8 motion. The crown was not available for the dates in October so the matter was set for December. Ms. Conron argued that, had the motion been set for October, the pregnancy delay could have been avoided. She was still working in October and could have attended on those October dates. It was argued that the crown should have re-assigned the file to someone who could argue the case in October.

74I do not agree. Certainly, the period between October and December counts against the crown. The court and the defence were available for the October dates and the crown was not. However, this does not affect subsequent events, such as the delay due to pregnancy. When the crown indicated that it was unavailable in October, it contemplated that the matter would be heard just two months later in December. One would not normally expect the crown to re-assign a file in those circumstances. At the time, no one knew that the December dates would have to be vacated due to defence counsel’s pregnancy. I expect that defence counsel did not know herself – otherwise she would not have scheduled the case in December.

75Moreover, even if the Charter motion had been heard in October, there would still be the need to schedule a trial date beyond that. The trial date would, by necessity, have been after defence counsel returned from maternity leave.

76There is one month of delay that should be attributed to the state. When setting a new date for the motions, defence counsel expressed her availability during the month of March, but the court did not have any dates in that period. The defence was available, and the court was not. There was also discussion about May dates, but the comments were less precise. We know that dates offered by the court were not available to counsel, and dates offered by counsel were not available to the court. Without further detail, it is difficult to know how to allocate that time frame.

77In the result, I find that the time from December 4, 2015 to June 30, 2016 is deducted from the overall delay, less 31 days to reflect defence availability during the month of March.

Characterizing the Charter Motion as Dispositive

78The final issue to be addressed concerns the s. 8 motion, and defence counsel’s representation that the motion would be dispositive.

79Ms. Conron acknowledges that she made a mistake when she told the court that the charter motion would be dispositive. She believed that the Charter motion was strong and that it would be decided in her favour. On that basis, she believed that it would be dispositive. She did not turn her mind to the possibility that the Charter motion might be dismissed. I accept that this was a genuine mistake. In this case, however, the mistake gave rise to delay and such delay must be attributed to the defence.

80By asserting that the motion was dispositive, Ms. Conron conveyed – albeit unintentionally – that there would be no need for a trial whatever the disposition of the Charter issue. If the Charter motion was successful, the crown would not proceed. If the Charter motion was not successful, the accused would plead guilty, or alternatively, not contest the crown’s case. It was precisely because the defence characterized the motion as dispositive that the court did not set trial dates to follow on the heels of the voir dire. One can presume that, had the defence alerted the court to the need for trial dates, those dates would have been set at the same time that dates were set for the Charter motion.

81It is difficult to know when those trial dates would have been. We know that June dates were available because June dates were set for the Charter motion. On the other hand, the trial would not likely have been scheduled to commence right after the s. 8 motion, as the trial judge needed time to rule on the Charter issue. While it is impossible to know when the trial would have been set, I am confident that it would have been set well in advance of the December dates that are now in place. The December dates are a function of the fact that trial dates were not set until July 16, 2015. At that time, the matter was brought forward at the urging of the crown, who had come to realize that additional trial dates might be needed.

82The delay in setting trial dates is defence delay, and should be deducted from the total delay. In the circumstances, this comprises the period from July 12, 2016 to December 21, 2016.

Conclusions about time Periods

83Given the above, the s. 11(b) analysis is reflected in the following steps:

Total delay: 1366 days

Subtract defence delay:

Defence adjournment of first assignment court in SCJ: August 12, 2014 - September 9, 2014: 29 days

Defence failure to file form 17 at first SCJ pre-trial: September 22, 2014-October 27, 2014: 36 days

Defence counsel’s pregnancy: December 4, 2015 – June 29, 2016: 208 days – 31 days to reflect the month of March = 177 days

Defence counsel’s erroneous assertion that charter motion dispositive (and consequent failure to set earlier dates for trial) July 12, 2016 – December 21, 2016: 162 days

Net Delay: 962 days = 32.06 months

Subtract Exceptional Circumstances (and transitional factors)

OCJ Alibi Notice/transitional approach to resolution discussions: August 15, 2013-December 19, 2013: 129 days

Resolution discussions in SCJ: November 18, 2014 – February 23, 2015: 116 days

Remaining Delay: 717 days = 23.9 months

84The remaining delay falls below the presumptive ceiling. This is not a case in which the defence can establish that a delay below 30 months is unreasonable under s. 11(b) of the Charter.

85For all of these reasons, I find that the accused’s rights under s. 11(b) have not been infringed. The application for a stay of the proceedings is dismissed.