COURT FILE NO .: 22/16 DATE : 2017/02/13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN : HER MAJESTY THE QUEEN Respondent J. Carnegie, for Crown

• and -

STEPHEN JURKUS P. Ducharme, for the defendant Jurkus

• and -

LESLIE LONSBARY Applicants R. Ellis, for the defendant Lonsbary

HEARD: February 1 and 2, 2017

CORRECTED DECISION: The text of the original judgment was corrected on March 30, 2017 and a description of the corrections is appended.

RULING ON APPLICATIONS PURSUANT TO SECTION 11(b) AND SECTION 24(1) OF THE CHARTER

A. K. MITCHELL, J.

Overview

[1] These applications are brought by the defendants claiming a breach of s. 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act , 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (the “ Charter ”) and seeking a stay of these proceedings pursuant to s. 24(1) of the Charter.

[2] The applicants argue their constitutional rights have been infringed due to the inordinate delay in bringing this matter to trial. The jury trial is scheduled to proceed during the 3 weeks commencing May 7 TH , 2017.

Background

[3] Adam Kargus was an inmate in the Elgin-Middlesex Detention Centre (“EMDC”) on October 31, 2013 and housed in Unit 6, Cell 3. On November 1, 2013, Mr. Kargus was found dead in the shower stalls of Unit 6. He had been beaten to death. On November 4, 2013, Anthony George, another inmate in EMDC, was charged with the murder of Mr. Kargus. Mr. George is awaiting trial on the charge of second degree murder.

[4] In October and November, 2013, Leslie Lonsbary and Gregory Langford were employed by the Ministry of Correctional Services at EMDC as correctional officers and Stephen Jurkus was employed as operational manager . At the time of Mr. Kargus’ beating and ultimate death, Mr. Lonsbary, Mr. Langford and Mr. Jurkus were on duty.

Timeline of Proceedings

[5] Police conducted an investigation into the death of Mr. Kargus and, following their investigation approximately 4 months later o n March 5, 2014, arrested the applicants together with their former co-accused, Mr. Langford. They were each charged with a single count of failing to provide the necessaries of life to Mr. Kargus thereby endangering his life contrary to s. 215(1) (c) of the Criminal Code of Canada .

[6] The three co-accused made their first appearance on April 15, 2014. Additional time was required in order for the accused to obtain disclosure and instruct counsel and the matter was adjourned to May 13, 2014.

[7] On May 13, 2014, the matter was adjourned to June 10, 2014, to receive and review additional disclosure. On June 10, 2014, the matter was again adjourned to July 8, 2014 for the purpose of scheduling a joint Crown resolution meeting.

[8] On July 8, 2014, the matter was adjourned to July 29, 2014, for the purpose of receiving and reviewing additional disclosure received a few days earlier. On July 29, 2014, the matter was adjourned to August 12, 2014 for the purpose of conducting a resolution meeting and a pretrial.

[9] On July 30, 2014, a joint resolution meeting was conducted and on August 7, 2014 a judicial pretrial was conducted before Rabley J.

[10] On August 12, 2014, the applicants appeared in court ready to schedule preliminary hearing dates and were advised that counsel for Mr. Langford had already adjourned the matter to September 9, 2014, for the purpose of scheduling a further pretrial. On September 9, 2014, the matter was again adjourned to September 30, 2014 for the purpose of conducting the judicial pretrial.

[11] On September 29, 2014, a further judicial pretrial was conducted before Justice Rabley. The matter was not resolved.

[12] On October 7, 2014 (previously adjourned from September 30, 2014 to allow the Crown to file a trial readiness certificate), a preliminary inquiry was scheduled for four days - May 11, 12, 15 and July 13, 2015. A trial readiness certificate filed by the Crown indicated the following:

• the Crown anticipated calling 15 witnesses;
• the three accused were each represented by separate counsel - Mr. Ducharme for Mr. Jurkus, Mr. Donald for Mr. Langford and Mr. Ellis for Mr. Lonsbary;
• the accused admitted:
  • the continuity and validity of EMDC surveillance video;
  • the voluntariness of the defendants’ statements during investigation;
  • the fact there was a segregation cell available October 31, 2013 but not that the defendants necessarily knew that; and
  • the fact that there was an empty cell on October 31, 2013.

[13] On May 6, 2015 (5 days prior to the commencement of the preliminary inquiry) the applicants were advised by the Crown that the charge against Mr. Langford had been withdrawn and he would be called as a Crown witness at the hearing. As scheduled, the preliminary inquiry proceeded on May 11, 12 and 15, 2015. At the end of the day on May 15, 2015, all counsel agreed that the matter was unlikely to be completed by July 13, 2015 as originally anticipated. All counsel agreed a further preliminary hearing date of October 16, 2015 would be set aside.

[14] On July 13, 2015, following completion of the Crown’s case, Mr. Lonsbary called Timothy McFadden as a witness. Although now retired, Mr. McFadden was formerly employed as security manager at EMDC.

[15] From a review of the transcript, it appears Mr. McFadden was on the stand for approximately a half day. His testimony spans 74 pages of transcript. 34 pages comprise his examination in chief by Mr. Ellis and 40 pages comprise his cross-examination by Crown counsel.

[16] Closing submissions proceeded on October 16, 2015. Following submissions, the matter was adjourned to October 20, 2015 to schedule a date for the decision on committal of LeRoy J.

[17] On October 20, 2015, the date of January 11, 2016 was scheduled for release of LeRoy J.’s decision on the defendants’ committal to stand trial.

[18] On January 11, 2016, LeRoy J. delivered her decision committing the applicants to stand trial. The matter was adjourned to the next assignment court to set a date for a judicial pretrial in the Superior Court of Justice.

[19] On February 9, 2016, counsel for Mr. Lonsbary requested an adjournment to the next assignment court date. No reason was given.

[20] On March 8, 2016, Mr. Ellis, acting as agent for Mr. Ducharme advised the court and Crown counsel that Mr. Ducharme’s earliest availability was July 29, 2016. Mr. Ellis was unavailable during the month of March 2016, however, was available to conduct a judicial pretrial during the month of April 2016. Unbeknownst to Mr. Ellis an exchange of emails between his assistant and Mr. Ducharme’s assistant leading up to the March 8, 2016 assignment court establishes that Mr. Ducharme was available to attend a judicial pretrial on April 4, 2016 via teleconference; however, the court did not agree to accommodate his request to participate by telephone. A pretrial was scheduled for July 29, 2016, the first available date all counsel were able to attend in person.

[21] On July 8 2016, the Supreme Court of Canada released its decision in R. v. Jordan [^1].

[22] At the pretrial conducted July 29, 2016, Mr. Lonsbary’s counsel advised the court of his client’s intention to seek a stay of proceedings pursuant to section 11(b) of the Charter .

[23] Following the judicial pretrial, the matter proceeded to the next assignment court on August 9, 2016 for trial scheduling. The parties estimated a three week jury trial was needed. Mr. Ducharme was unavailable until April 2017. Mr. Ellis was unavailable during the last two weeks of April 2017; however, was available all other times. The Crown was unavailable during November 2016 but was available all other times. The court’s availability prior to April 2017 is unknown. The court was unavailable the first week of May 2017. Mr. Lonsbary’s s. 11(b) Charter application was scheduled for February 1 and 2, 2017. The agent for Mr. Ducharme in attendance on August 9, 2016 did not advise the court or the Crown of Mr. Jurkus’ intention to bring a s.11(b) application. He was silent on the issue. A 3-week jury trial was scheduled to commence on May 8, 2017.

[24] It is anticipated that the trial will be completed on May 26, 2017.

Disclosure Timeline

[25] Disclosure in this case has proceeded as follows:

(a) On March 5, 2014, the applicants first requested disclosure from the Crown; (b) May 8, 2014, the Crown provided hard drive disclosure to the applicants; (c) On June 19, 2014, the Crown requested a return of hard drive one of two in order for additional disclosure to be added; (d) On July 27, 2014, the Crown provided an updated disclosure hard drive; (e) on December 9, 2014 the applicants received a CD containing further disclosure from the Crown; (f) on April 23, 2015 the applicants received a hard drive containing further disclosure from the Crown; (g) on May 6, 2015 the Crown provided to the applicants a synopsis of Mr. Langford’s statement taken on May 4, 2015; (h) on September 10, 2015 the Crown provides to the applicants a DVD containing additional disclosure; and (i) on November 6, 2015 the Crown provided a CD containing additional items of disclosure.

[26] Since the applicants’ first request, disclosure has spanned 611 days or 20.4 months.

Positions of the Parties

The Applicants’ Position

[27] The applicants submit that the total delay from arrest and charge to the expected completion of the trial is 1,178 days or 39.3 months. The delay in the Ontario Court of Justice (“OCJ”) from arrest to committal of the applicants to stand trial was 677 days or 22.6 months.

[28] The applicants submit that the delay at the OCJ is attributable to the Crown and the court as a result of:

1. the perpetual state of continuing disclosure;
2. the negotiation and resolution discussions involving Mr. Langford;
3. the preliminary hearing judge failing to release her decision on committal until almost 3 months (87 days) following completion of the preliminary hearing.

[29] The time in the Superior Court of Justice from committal to stand trial on January 11, 2016 to the last day of trial is 501 days or 16.7 months.

[30] The applicants argue the delay is presumptively unreasonable under the Jordan regime and cannot be saved by a transitional exceptional circumstance under the Morin regime.

The Crown’s Position

[31] The Crown submits that while a total delay of 1,178 days is presumptively unreasonable, defence delay and exceptional circumstances rebut the presumption of unreasonableness.

[32] The Crown submits this is a complex case. The matter is set for a three week-long jury trial in the Superior Court of Justice. The police investigation involved production and vetting of considerable disclosure including 1.35 terabytes of video surveillance and more than 3000 pages of documentary disclosure.

[33] At no time did either applicant expressly waive the acceptable time periods. Nevertheless, the Crown says that most adjournments were at the request of or consented to by one or both applicants. The Crown adds that there is no basis upon which to find the applicants were prejudiced by the delay. The Crown submits their loss of employment is attributable to their own job misconduct unrelated to these criminal proceedings.

[34] The Crown submits that no violation of the applicants’ rights under s. 11(b) of the Charter occurred and that the delay in this case does not fall under either the Morin or Jordan framework for unreasonable delay.

Legal Principles – R. v. Jordan

[35] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. Section 11(b) is designed to protect the rights of accused persons and also the interest of society in the fair and expeditious resolution of criminal proceedings .

[36] It is the Crown’s duty to bring an accused to trial in a timely manner – it is not and never becomes the duty of the defendant.

[37] The Supreme Court of Canada in Jordan substantially overhauled the Morin s. 11(b) framework. [^2] The new framework sets the ceiling beyond which delay is presumptively unreasonable - 30 months for cases in the Superior Court of Justice and 18 months for cases in the OCJ. As a result of Jordan , the approach to a determination of whether an accused’s right to a fair trial within a reasonable time is now largely formulaic. The analytical framework developed in Jordan was well summarized in R. v. Coulter [^3] as follows:

a) Calculate the total delay for the period commencing with the date on which the accused was charged and ending on the actual or anticipated date on which the trial ends. b) Subtract the number of days of delay attributable to defence delay which results in the net delay. A. Defence delay has two components: (1) that arising from defence waiver (which must be clear and unequivocal); and (2) delay caused solely by the conduct of the defence ( defence-caused delay ). [^4] B. Defence-caused delay is comprised of deliberate and calculated tactics employed by the defence to delay the trial; and conduct directly causing the delay for example where the court and the Crown are ready to proceed but the defence is not. [^5] Defence conduct deliberately undertaken to respond to the charge falls outside the scope of defence delay. [^6] c) Compare the net delay to the presumptive ceiling to determine whether the net delay exceeds or falls below the presumptive ceiling. d) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption the Crown must establish the existence of exceptional circumstances . Exceptional circumstances lie outside the Crown’s control and fall under two categories - discrete events and particularly complex cases. A. Discrete events include a medical or family emergency on the part of the accused, an important witness, counsel or the trial judge. A discrete event is reasonably unforeseen or reasonably unavoidable and an event which the Crown cannot reasonably remedy. [^7] B. Particularly complex cases are those where the nature of the evidence or issues (or both) require an inordinate amount of trial and preparation time. The seriousness or the gravity of the offence cannot be relied on to establish that the case is particularly complex. [^8] e) Subtract the days of delay attributable to discrete events from the net delay leaving the remaining delay . f) If the remaining delay exceeds the presumptive ceiling, the Crown must establish that the case was particularly complex such that the time the case has taken is justified and the delay is reasonable. g) If the remaining delay falls below the presumptive ceiling the onus is on the defendant to show that the delay is unreasonable. h) Transitional cases (i.e., charges arising before July 8, 2016 (the date on which Jordan was released)) must further consider: A. where the remaining delay exceeds the presumptive ceiling the court must consider whether the Crown has satisfied the court that the time the case took is justified based on the parties’ reasonable reliance on the law as it previously existed. That is, the parties’ behaviour cannot be judged strictly against the standard of which they had no notice. Considerations of prejudice and the seriousness of the offence can inform the parties’ reliance. B. Where the remaining delay falls below the presumptive ceiling, the defence must establish it took initiative to move the matter forward and that the period of delay markedly exceeds what was reasonably required.

Analysis

[38] As noted earlier, the total period of delay for both defendants is 1,178 days or 39.3 months. Since the matter will be tried in the Superior Court of Justice, the presumptive ceiling is 30 months.

[39] Aside from the analysis of defence delay, the balance of the analysis is identical for each of Mr. Jurkus and Mr. Lonsbary.

What is the defence delay attributable to Stephen Jurkus?

[40] The Crown submits that the defence delay attributable to Mr. Jurkus is 339 days or 11.3 months and is comprised of the following:

• 28 days attributable to the defendants’ request that the matter be adjourned from the February 9, 2016 assignment court to the March 8, 2016 assignment court to set a date for a judicial pretrial
• 143 days or 4.7 months (March 21-July 29, 2016 save and except for April 4 and 7 and May 13) attributable to Mr. Ellis’ incorrect advice to the Crown and to the court on March 8, 2016 that Mr. Ducharme’s first availability to attend a judicial pretrial in the Superior Court of Justice was July 29, 2016. The Crown concedes that credit should be given for the dates on which Mr. Ducharme was available to participate in a pre-trial by phone of which Mr. Ellis was unaware.
• 6 months (September 2016 through March 2017 excluding November 2016 [^9] ) attributable to Mr. Ducharme being unavailable for trial until April 2017.

[41] In response, Mr. Jurkus argues that where the court and the Crown are ready to proceed and the defence is not ready to proceed there is defence delay. However, where either the court or the Crown, or both, are unavailable, even if the defence is not available, the delay occasioned is counted for the purposes of delay and the presumptive ceiling. [^10]

[42] There is no evidence to support a finding of defence waiver with respect to Mr. Jurkus.

[43] I find that the adjournment request of the applicants on February 9, 2016 to put the matter to the next Assignment Court resulting in a delay of 28 days is defence delay. No reason was provided for the adjournment request. While I note that Crown counsel indicated the Crown was “content” with the adjournment request, I have no doubt the court was in a position to schedule a pretrial without further delay.

[44] There was a breakdown in communication between Mr. Ellis’ administrative staff and Mr. Ellis resulting in Mr. Ellis advising the court on March 8, 2016 that Mr. Ducharme’s earliest availability to attend a pretrial was July 29, 2016. In fact, Mr. Ducharme was available on March 11, 16, 17, 18, April 4 and 7 (by teleconference only [^11] ) and May 13, 2016. While Mr. Ducharme had availability in March 2016 and limited availability in April and May, Mr. Ellis was unavailable on the dates provided by Mr. Ducharme’s office. Mr. Ducharme was unavailable during the month of June and July 1-28, 2016. A judicial pretrial is a relatively straightforward matter requiring little preparation and attendance time. Pre-trial dates are readily available. I find that the time from May 14 through July 28, 2016 (75 days) is defence-caused delay attributable to Mr. Jurkus.

[45] On August 9, 2016 (during the post- Jordan era), the Crown advised of its availability and both defence counsel advised of their respective availability for trial. The court was silent on its ability to accommodate a three-week jury trial prior to April 2017 despite Mr. Ellis putting on the record that he had availability prior to April 2017 and further that he intended to bring a s.11(b) Charter application. There is no evidence the court (as opposed to the Crown) had time available to accommodate a 3-consecutive week jury trial before May 2017. In April 2017, only two consecutive weeks were available. The transcript is silent as to the court’s availability, save and except it was noted that the court was unavailable during the first week of May.

[46] Despite trial scheduling occurring post- Jordan , neither the Crown nor the court sought the express waiver by Mr. Jurkus when his counsel’s limited availability pre-April 2017 was placed on the record and Mr. Ellis’ concerns re delay were noted. While the agent for Mr. Ducharme was silent as to Mr. Jurkus’ intentions regarding the issue of delay, his silence does not constitute an implied waiver of his s. 11(b) rights. Without evidence of the court’s availability to schedule a 3-week jury trial prior to April 2017, no portion of this delay can be characterized as defence-caused delay attributable to Mr. Jurkus.

[47] Accordingly, I find that the defence delay attributable to Mr. Jurkus is 75 days + 28 days = 103 days (or 3.43 months).

[48] The net delay for Mr. Jurkus is 1178 days – 103 days = 1075 days or 35.8 months.

What is the defence delay attributable to Leslie Lonsbary?

[49] The Crown submits that the defence delay attributable to Mr. Lonsbary is 266 days or 8.9 months and is comprised of the following:

• 28 days attributable to the defendants’ request that the matter be adjourned from the February 9, 2016 assignment court to the March 8, 2016 assignment court.
• 144 days or 4.7 months (March 8-July 29, 2016) attributable to Mr. Ellis’ advice to the Crown and to the court on March 8, 2016 that defence counsel’s first mutual available date to attend a judicial pretrial in the Superior Court of Justice was July 29, 2016.
• 95 days or 3.2 months (July 13 – October 16, 2015) attributable to Mr. Lonsbary’s late-decision to call evidence at the preliminary inquiry thus necessitating a fifth day of hearing which was scheduled during the preliminary hearing rather than in October 2014 when the original 4 days were scheduled. The Crown argues that while the defendant is entitled to call evidence at a preliminary inquiry, doing so without putting the Crown and the court on notice to allow appropriate scheduling of dates, means that the resulting delay should be attributed to the defendant. The Crown relies on the decision in R. v. Hayes [^12] in this regard.

[50] In response, Mr. Lonsbary adopts the same legal arguments as Mr. Jurkus but also relies on the evidence of his administrative assistant, Jessica Myers, to establish his availability during the months of May, June and July, 2016. With respect to the delay which the Crown alleges was caused by Mr. Lonsbary’s decision to call evidence at the preliminary hearing thus necessitating the scheduling of a fifth day for the preliminary hearing, Mr. Ellis argues his client’s decision did not delay the hearing because regardless of the evidence of Mr. McFadden, the October 16 th date had been scheduled long before the decision was made. The fifth day was scheduled on agreement of the Crown and defence at the end of the 3 rd day of the preliminary hearing on May 15, 2015 because it became apparent to all that the Crown’s evidence was of longer duration than first anticipated and submissions would not be completed by July 13, 2015. Moreover, Mr. McFadden’s evidence was relevant. His evidence established that a standing order mandated correctional officers to conduct 30-minute checks of the units. Mr. McFadden confirmed inmate safety was of paramount concern at EMDC.

[51] There is no evidence to support a finding of defence waiver with respect to Mr. Lonsbary. To the contrary, Mr. Lonsbary indicated his intention on August 9, 2016 of bringing of this s. 11(b) Charter application.

[52] As I found with respect to Mr. Jurkus, I find that the adjournment request of the applicants on February 9, 2016 to put the matter to the next Assignment Court resulting in a delay of 28 days was caused by the defendants. A delay of 28 days is similarly attributable to Mr. Lonsbary.

[53] There was a breakdown in communication between Mr. Ellis’ administrative staff and Mr. Ellis resulting in Mr. Ellis advising the court on March 8, 2016 that Mr. Ducharme’s earliest availability to attend a pretrial was July 29, 2016. In fact, Mr. Ducharme was available on March 11, 16, 17, 18, April 4 and 7 (by teleconference only [^13] ) and May 13, 2016. While Mr. Ducharme had availability in March and April 2016, Mr. Ellis did not. Ms. Myers requested dates from Mr. Ducharme’s office starting in May. Mr. Ellis was unavailable during March and April, 2016.

[54] I find that the time from March 11 (Mr. Ducharme’s first availability) through April 30, 2016 (50 days) is defence-caused delay attributable to Mr. Lonsbary.

[55] I am not persuaded the delay between the fourth and fifth days of the preliminary inquiry (July 13 – October 16, 2015) should be attributed to Mr. Lonsbary as defence delay for the following reasons:

• Between the scheduling of the preliminary hearing dates on October 7, 2014 and first day of the hearing on May 11, 2015, the Crown resolved its case against Mr. Langford and Mr. Langford became one of the Crown’s witnesses at the preliminary hearing. This dramatic change in the landscape was unknown to all parties when the trial readiness certificate was filed on October 7, 2014, and the original 4 day estimate provided to the court. Unlike the situation in Hayes, I find the decision by Mr. Lonsbary to call evidence was not a defence “tactic” designed to delay the proceeding.
• The transcript from May15, 2015 suggests a fifth day was likely required to complete closing submissions regardless of Mr. Lonsbary’s decision to call evidence.
• McFadden’s testimony consumed less than ½ day of court time with more than ½ of that time taken by the Crown in cross-examination.
• Mr. McFadden’s evidence was relevant to a determination of the issues. In fact, Crown counsel referred to Mr. McFadden’s evidence numerous times during her closing submissions.

[56] Accordingly, I find that the defence delay attributable to Mr. Lonsbary is 28 days + 50 days = 78 days (or 2.6 months).

[57] The net delay for Mr. Lonsbary is 1,178 days – 78 days = 1,100 days or 36.6 months.

[58] With respect to both Mr. Jurkus and Mr. Lonsbary, the net delay exceeds the presumptive ceiling of 30 months and is, therefore, presumptively unreasonable. The Crown may rebut the presumption by establishing the existence of exceptional circumstances whether they be of discrete events or the complexity of the case.

[59] The Crown has suggested that Mr. Lonsbary’s decision to call evidence at the preliminary hearing was unanticipated based on the contents of the trial readiness certificate filed in advance of scheduling the preliminary hearing dates and should be considered a “discrete event” which added in excess of 3 months to the period of delay. I am unpersuaded the decision to call Mr. McFadden as a witness at the preliminary hearing is a “discrete event” of the kind envisioned in Jordan. The Crown could have foreseen this event occurring and planned for it particularity given its knowledge of the resolution of the charge against Mr. Langford. The defendant was entitled to call evidence. Albeit unexpected, this development was not exceptional. As earlier noted in these reasons, the Crown has not established on the evidence that but for this decision a 5 th day of hearing time would not have been required.

[60] Regardless, this 3-month delay, is insufficient to bring the net delay of either applicant below the presumptive ceiling.

[61] The Crown argues that the complexity of this matter justifies the time it has taken to reach trial and points to:

• Voluminous disclosure;
• A large number of witnesses;
• Novel legal issues; and
• It being in the interests of justice to proceed against both the applicants jointly despite the added delay.

[62] Evidence to support the Crown’s position on complexity of the case includes:

• The 87 days required by the judge on the preliminary hearing to render her decision on committal after commenting at the close of submissions: “All right so no easy task.”;
• The evidence called at the preliminary hearing spanned 4 days and consisted of 13 witnesses, a variety of documentary exhibits and video surveillance;
• The trial is scheduled to last 3 weeks; and
• The offence alleged against both accused is the same and stems from the same factual occurrence. The evidence and witnesses at trial will be largely the same.

[63] In response, the applicants counter that the case is not complex. Moreover, the Crown could have and should have proceeded separately against each of Mr. Jurkus and Mr. Lonsbary in an effort to reduce the delay in bringing these matters to trial. The applicants argue that proceeding against them jointly has not only added to the length of unreasonable delay but has also added to the complexity. For example, Mr. Jurkus would have elected to be tried by judge alone without a jury thus reducing the trial time and increasing trial scheduling availability. Mr. Lonsbary would have selected a trial date in the Fall 2016 when his counsel was first available.

[64] I am not persuaded this is a complex case for the following reasons:

• Each of Mr. Lonsbary and Mr. Jurkus is charged with a single count of failing to provide the necessaries of life to Mr. Kargus thereby endangering his life. This is not a novel or rarely used section of the Code. The elements of the offence are not obscure or difficult to comprehend. The novelty arises in the use of this provision of the Code to support an offence arising from the alleged criminal conduct of correctional officers during the course of their employment duties. This case has garnered a lot of publicity in Southwestern Ontario which has presumably added to the pressure on the Crown to thoroughly and meticulously investigate the matter and take a “leave no stone unturned” approach to the prosecution. That approach takes time and has added to the delay. However, intense publicity does not transform an otherwise straightforward case into a complex one.
• The events in question relate to a single day’s events at EMDC. The video surveillance while comprising a large amount of data is not difficult to comprehend or decipher. The video would take approximately one hour to view.
• The evidence against Mr. Jurkus relates almost exclusively to a statement made by him during a police interview which took place shortly after the incident. With respect to Mr. Lonsbary, the focus is on the proper and consistent use of a Diester device (a recording tool) during rounds while inmates are on lockdown. The conduct of Mr. Jurkus forming the basis for the charge is separate and distinct from the conduct of Mr. Lonsbary forming the basis of the charge against him.
• Mr. Jurkus and Mr. Lonsbary held different positions at EMDC, had different roles and responsibilities and had different information relevant to Mr. Kargus’ safety the night of October 31, 2013. There is no danger of inconsistent verdicts.
• The Crown elected to proceed against Mr. Jurkus, Mr. Langford and Mr. Lonsbary, jointly. However, the Crown must remain vigilant that its decision does not compromise the subsection 11(b) Charter rights of either accused. [^14] In doing so, the additional time incurred to conduct judicial pre-trials and resolution meetings with Mr. Langford in an effort to resolve the issues with Mr. Langford in exchange for his evidence to bolster the case against the applicants added to the delay.

[65] The defendants did not take steps, tactically or otherwise, to delay these proceedings. Their conduct throughout suggests they were not trying to obstruct the forward momentum rather were attempting to simplify issues and move the case forward. In arriving at this finding, I considered the following:

• The defendants made a number of admissions as listed in the trial readiness certificate which reduced the time needed for the preliminary inquiry;
• The defendants did not seek an adjournment of the preliminary hearing when notified just 5 days before the commencement of the hearing that the charge against Mr. Langford had been withdrawn and he was to be called as a Crown witness;
• The defendants arranged a meeting with the Crown and the police to review portions of the video disclosure in an effort to decipher the surveillance.
• Mr. Lonsbary called a witness at the preliminary hearing whose testimony was relevant to the case;
• The applicants agreed to various adjournments of the case to facilitate resolution meetings between the Crown and Mr. Langford which were of no benefit to the applicants; and
• This case does not involve delay arising from the defendants seeking legal aid funding, changing lawyers, and/or making unreasonable disclosure requests, as is often the case.

[66] I find there were no discrete events and further find the case is not complex. The Crown has not rebutted the presumption of unreasonable delay. The remaining delay exceeds the presumptive ceiling.

[67] This is a transitional case. Since the remaining delay exceeds the presumptive ceiling for both Mr. Jurkus and Mr. Lonsbary, the Crown must satisfy the court that the time the case took is justified based on the parties’ reasonable reliance on the law as it previously existed.

[68] Crown counsel argues that the parties reasonably relied on the previous regime. In contrast, the applicants argue the delay would also have been unreasonable under the pre- Jordan framework established in R. v. Morin [^15].

[69] This transitional exceptional circumstance will apply if 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. [^16]

[70] In Morin at para. 31 , the court listed the factors relevant to a determination of the point at which a delay becomes unreasonable. Those factors are:

i. The length of the delay; ii. Waiver of time periods; iii. The reasons for the delay, including: (a) Inherent time requirements of the case, (b) Actions of the accused, (c) Actions of the Crown, (d) Limits on institutional resources, and (e) Other reasons for delay; and iv. Prejudice to the accused.

[71] Considering these factors in the context of this case, I note:

i. Mr. Kargus was killed more than 3 years ago. By the end of trial, this matter will have spanned in excess of 3 years. ii. The case has received significant publicity; however, the matter is straightforward. This case involves a single count relating to events occurring on a single day. While voluminous, the disclosure is not difficult to understand. iii. If convicted, the applicants could face penitentiary time. [^17] The matter is of moderate seriousness. iv. The Crown was entirely responsible for the prolonged period of disclosure spanning in excess of 20 months. v. A number of the adjournment requests in the OCJ were made on consent of all parties during the 3 month period July 8 – October 7, 2014 for the purpose of allowing the parties time to prepare for and conduct a joint resolution meeting and two judicial pre-trials. These resolution efforts proved ultimately to benefit only Mr. Langford against whom the charge was withdrawn. This 3-month delay was at the expense of the applicants. vi. Trial scheduling occurred post- Jordan and on a date under the presumptive 30-month ceiling yet upon learning of Mr. Ducharme’s lack of availability until April 2017 (8 months out), the Crown did not seek Mr. Jurkus’ express waiver of his s. 11(b) rights nor did the Crown seek to sever the charge against Mr. Lonsbary and proceed with his trial in the Fall of 2016. vii. Mr. Lonsbary was entitled to call evidence at the preliminary hearing. The evidence of Mr. McFadden is relevant to the issues. It is apparent from a review of his testimony that Mr. McFadden should have been called by the Crown as a witness at the preliminary inquiry. viii. There is some evidence of institutional or systemic delays in the OCJ which contributed to the overall delay. I note that scheduling a 4 day preliminary hearing caused a 7 month delay to the commencement of that hearing and a 12 month delay to its conclusion. A portion of the delay was likely attributable to continued Crown disclosure and preparation time the latter of which is neutral and does not count towards a determination of reasonableness. The delay between July 13 and October 16, 2015 (the 4 th and final days of the hearing) is institutional delay and factors into the determination. ix. The preliminary hearing judge reserved her committal decision for 87 days. While a portion of this delay is inherent as it cannot be expected that the preliminary hearing judge render her decision on committal immediately following the conclusion of the hearing, I find that two months of this delay is not inherent and counts toward the determination of reasonableness. x. This jurisdiction is not plagued by significant systemic or institutional delay issues. xi. There were no waivers of time periods by either applicant. To the contrary, Mr. Lonsbary expressly advised the court on August 9, 2016 he intended to bring this application. xii. These charges have been outstanding against the applicants for almost 3 years. The incident giving rise to these charges occurred well over 3 years ago. Both accused endured a 4 month investigation into their respective involvement in and responsibility for Kargus’ death before formal charges were brought against them. In September 2015, the applicants were terminated from their employment with EMDC after 15 years. The applicants are subject to a condition of bail which prohibits them from any employment which involves them having a duty or charge over an inmate of any jail, detention centre or correctional facility in the Province of Ontario. As a result of the delay, the applicants have suffered reduced earning capacity and have endured negative publicity and the continuing stigma associated with these charges. As noted in R. v. Godin [^18] , prejudice that initially results from being charged can become prejudice caused by delay if the additional delay negatively impacts an accused’s health or financial situation. Prolonged exposure to criminal charges resulting from delay can give rise to prejudice.

[72] Balancing the foregoing factors, I find the time this case will take to the conclusion of the trial is not reasonable under the pre- Jordan regime. The circumstances and in particular the Crown’s resolution of the charge against Mr. Langford at the expense of the applicants, the 20- month period of disclosure, the institutional delay caused by the delay in the release of the committal decision and the court’s refusal to permit remote attendance at the judicial pretrial by out of town counsel, the Crown’s decision to proceed jointly against the applicants when there was no inherent benefit to the administration of justice to doing so, and the real and substantial prejudice suffered and continuing to be suffered by the applicants arising from the delay, tips the balance in favour of the applicants and the transitional exceptional circumstance does not apply to rebut the presumption.

[73] In this post- Jordan era it is the duty of the Crown to bring the accused to trial in a timely fashion; otherwise the Crown bears the burden of justifying the delay. In this case, the Crown has done little to move the matter forward with diligence. It has acted with complacency and in doing so the Crown has failed to discharge its burden.

Disposition

[74] The applicants have established on a balance of probabilities that their right to be tried within a reasonable time, as guaranteed by Section 11(b) of the Charter , has been breached. In the result, their respective applications are granted and they are entitled to a stay of these proceedings pursuant to s. 24(1) of the Charter.

“Justice A. K. Mitchell”

A.K. Mitchell J.

Released: February 13, 2017

CORRECTION NOTICE

Corrections:

In paragraph 23, a reference to “August 9, 2017” has been changed to “August 9, 2016”.

In paragraph 71(ix), a reference to the “pretrial judge” has been changed to the “preliminary hearing judge”.

[^1]: 2016 SCC 27, [2016] S.C.J. No. 27. [^2]: R. v. Morin, [1992] 1 S.C.R. 771. [^3]: 2016 ONCA 704, [2016] O.J. No. 5005 (C.A.) [^4]: Supra, at paras. 42 and 43. [^5]: Ibid, at para. 44. [^6]: Jordan, at para. 65 [^7]: Ibid., at para. 69. [^8]: Ibid., at para. 51. [^9]: The Crown was unavailable only during the month of November 2016. [^10]: Jordan at para. 63, 64. [^11]: The court refused to accommodate this request relying on the Region’s historical practice. [^12]: [2003] O.J. No. 4590 (C.A.) at para. 26. [^13]: The court refused to accommodate this request relying on the Region’s historical practice. [^14]: R. v. Manasseri, 2016 ONCA 703, [2016] O.J. No. 5004 (C.A.) at para. 373. [^15]: [1993] S.C.J. No. 25. [^16]: Ibid., at para. 96. [^17]: Section 215(3) of the Code provides for a maximum term of imprisonment of 5 years. [^18]: 2009 SCC 26, [2009] S.C.J. No. 26 at para. 34.