COURT FILE NO.: CR-13-00000027 DATE: 20170508 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – DARCY WEST Applicant

Counsel: S. Hamel, for the Crown S. Sabourin, for the Applicant

HEARD: April 12, 2017

PUBLICATION RESTRICTION NOTICE By court order made under subsection 539(1) of the Criminal Code, these reasons shall not be published in any document, or broadcast or transmitted in any way until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial.

DECISION ON CHARTER s. 11(b) APPLICATION

WILCOX, J.

Introduction

[1] The accused has brought an application for an order granting a stay of proceedings on the grounds that he has not been provided with a trial within a reasonable time, contrary to s. 11(b) of the Charter of Rights and Freedoms.

[2] S. 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time.

[3] The accused was charged on December 29, 2009, although the original information was not sworn until January 18, 2010. The charges were sexual interference, invitation to sexual touching, sexual exploitation (2 counts), incest (2 counts) and sexual assault (2 counts). They were alleged to have taken place between January 1, 2003 and May 31, 2009, all against the same complainant.

[4] Trial is currently scheduled to commence June 5, 2017 and is expected to take 5 days.

The Jordan Framework

[5] The Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, set out a new framework for applying s. 11(b), having identified problems with the previous “Morin” framework. In the Jordan framework, there is a ceiling beyond which delay is presumed to be unreasonable. The ceiling is 30 months for cases that go to trial in the Superior Court of Justice. If the total time from the charge to the actual or anticipated end of the trial, less any delay attributed to the defence, exceeds the ceiling, the delay is presumed to be unreasonable. The onus is then on the Crown to rebut the presumption. To do so, it must show that there are exceptional circumstances, failing which the delay is unreasonable and there will be stay. On the other hand, where the delay falls below the ceiling, the burden is on the defence to show that the delay is nevertheless unreasonable.

[6] Defence delay was said to have two components, delay waived by the defence, and delay caused solely by the conduct of the defence. The latter includes acts of the defence which are shown to be deliberate and calculated tactics used to delay the trial, and periods resulting from the defence not being available to proceed when the courts and the crown are. It was left open to the courts to find that other defence actions have caused delay. However, the court recognised that legitimate time and actions taken by the defence to respond to the charges would not constitute defence delay.

[7] Exceptional circumstances were defined as ones being outside of the Crown’s control in that:

1. They are reasonably unforeseen or reasonably unforeseeable, and
2. Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.

[8] There are two categories of exceptional circumstances: discreet events and particularly complex cases. The determination of whether circumstances are “exceptional” was left to the trial judges. A further consideration is whether the Crown made reasonable efforts to have the trial concluded under the ceiling.

[9] The period of delay attributed to discreet exceptional events is to be subtracted from the total period of delay to ascertain whether the ceiling has been exceeded. On the other hand, if the time taken is justified by the complexity of the case, the delay will have been reasonable and there will be no need for a stay of proceedings.

[10] The absence of prejudice to the accused cannot be used to justify delays beyond the ceiling. The concept of prejudice was said to underline the framework and to have been accounted for in creating a ceiling.

[11] The Jordan framework applies to any case “in the system” on the day the decision was released, July 8, 2016. However, its application is subject to a built-in “transitional exception” which acknowledges that the parties would have placed reasonable reliance on the legal framework provided in Morin and could not have been aware of the Jordan framework prior to the release of that decision. The transitional exception is intended to prevent a recurrence of the stay or withdrawal of numerous criminal charges that resulted from the Supreme Court’s decision in R. v. Askov, 1990 SCC 45, [1990] 2 S.C.R. 1199.

[12] The Ontario Court of Appeal summarised the Jordan framework in R. v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005 (para. 34 – 41) as follows:

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

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

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

[37] If 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).

[38] Subtract 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).

[39] If 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).

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

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

Total Delay

[13] The total delay in this matter is approximately 90 months. This is three times the presumptive ceiling for the Superior Court of Justice. Consequently, the bulk of the argument in this application was about defence delay. The Crown’s position was that 60 months is attributable to defence delay, bringing the case down to the 30 month presumptive ceiling. It produced a chart which set out the various court dates, the various reasons for adjournments, and the periods it attributed to defence delay. Defence counsel indicated on the chart when there was agreement with the Crown and when there was not. This served to focus attention on the periods in contention. An updated version of the chart was used throughout the submissions on defence delay, and was extremely helpful.

[14] I should point out that defence counsel on this application, Ms. S. Sabourin, is the accused’s fourth counsel in this case.

Defence Delay

[15] The first contentious period is from April 30, 2010 to August 18, 2010. April 30 was the accused third appearance, but he had yet to perfect the retainer of defence counsel, Ms. C. McLeod. The matter was adjourned to May 21 and then to July 14, 2010. Due to the lapse of time since then, the records of those appearances are no longer available. The records begin on July 14, 2010 when the case was adjourned to August 18, 2010 for McLeod’s motion to be removed from the record. That motion was served July 13 and heard August 18, 2010, when she was removed. McLeod’s motion material reveal that she had been retained by the accused on February 9, 2010, that the date for the preliminary hearing was to be set in court on July 14, that she had written to the accused on four occasion between February 19 and July 7 requiring a monetary deposit for that and further steps or she would move to get off the record, that the accused had been reminded in person when he attended McLeod’s office on February 25 and April 9, that McLeod’s office had not been able to reach the accused by telephone, and that the requested retainer had not been received.

[16] Defence submitted that it is clear that the accused tried to hire a lawyer, but could not afford one. The accused’s affidavit indicates, on the other hand, that he had formed the opinion that he would not be able to work with McLeod and had lost confidence in her.

[17] The Crown attributed the following time to defence delay:

1. 21 days from the April 30 to May 21
2. Half of the 54 days, being 27 days, from May 21 to July 14
3. 35 days from July 14 to August 18, 2010.

[18] It is apparent that the accused had decided by April 30, 2010 that he would not be continuing with McLeod’s services, yet he did not communicate that to her and in fact failed to even respond to her communications, knowing that she would be applying to get off the record therefore. Had he stayed in contact, there could have been arrangement to have her removed from the record by May 21, 2010, on consent. Therefore, I do not disagree with the Crown’s attribution of delay from April 30 to August 18, 2010.

[19] The next contentious period was from August 18, 2010 to February 7, 2011. The accused did not appear on August 18, although he had been served with McLeod’s application to get off the record that date. Consequently, a bench warrant was issued for his arrest. He was arrested on February 6 and brought to bail court on February 7, 2011. He admits to being aware of McLeod’s application to get off the record. He deposed that he was not provided with a next court date and was unaware that there was a bench warrant issued for his arrest. He was arrested eventually as a result of a traffic stop because of a problem with his motor vehicle’s lights.

[20] The Crown submitted that the accused had an obligation to make himself aware of his court date but there was no evidence that he had enquired about it.

[21] The defence argued that, although the accused had an obligation to know of his court dates:

1. McLeod’s application to get off record did not say that the accused had to attend court
2. There is no evidence of any efforts by the Crown to contact the accused
3. The accused would not have been hard to find, particularly as his address would be on his release papers.

[22] I agree that the accused had an obligation to attend to his own court case. He should have appeared on August 18, knowing that he would be without a lawyer after that, and been able to deal with the next step. However, after he did not appear and the consequent bench warrant, there appears to have been little attention paid to his case. I agree with defence counsel that it should have been quite easy to locate and arrest him. There is no evidence of efforts to do so, or even to contact him. His arrest in February 2011 was due to a chance encounter with police. So, I would attribute 31 days of delay to the accused, by which time he should have been arrested, not the 173 days attributed by the Crown.

[23] Following his appearance in bail court on February 7, 2011 at which time the accused was released, the next court appearance was March 4, 2011. The next period in contention is from then to May 27, 2011. On March 4, the Crown agreed with the accused’s request to adjourn to April 15, 2011 as he had an appointment with a lawyer on April 11. On April 15, the accused’s request was granted for an adjournment to May 6 to perfect the retainer of his new lawyer, Mr. D. Fenton.

[24] In response to the defence counsel, whose role that day is not clear from the record but may have been as duty counsel or agent, saying he did not know how long the matter had been going on, Crown counsel briefly recapped its history. The court noted that there had been 10 appearances and that the matter had been going on for long time, and instructed the accused to “have some information” at the next court appearance. On May 6, McLeod spoke to the matter. Again, her role is not clear but was likely as duty counsel or agent. She understood the accused had retained Mr. Fenton whose request, agreed to by the Crown, to adjourn to May 27 to obtain and review disclosure, was granted.

[25] The Crown’s position was that the period from March 4 to May 27, 84 days, was defence delay for several reasons:

1. It was clearly the accused’s fault that he lost his first lawyer
2. The accused had from August 18, 2010 to February 7, 2011 to secure the services of a new lawyer and had not done so
3. When an accused person loses his lawyer in circumstances such as in this case, it is incumbent on him to take steps promptly to retain a new lawyer
4. An accused person is not entitled to have an unlimited amount of time to retain a lawyer and he is not entitled to have duplicate periods of inherent time because he changed lawyers. If that was permitted, an accused person could simply run the clock past the presumptive ceiling by repeatedly changing lawyers. This is not the kind of delay that s. 11(b) and Jordan seeks to prohibit.

[26] In R. v. Isaacs, 2016 ONSC 6214, [2016] O.J. No. 5225, a case decided in the Ontario Superior Court of Justice in light of the Jordan decision, W. M. Lemay J stated at paragraph 90:

…if the case cannot be moved forward because the accused has not retained a lawyer, …, then that is defence delay. In other words, “defence foot-dragging” should be considered defence delay.

[27] In this case, I am persuaded that the accused had plenty of time after McLeod got off of the record to retain Fenton and for Fenton to obtain disclosure from McLeod and meet with the accused, even before the accused’s arrest in February 2011. Following that and allowing time for counsel to work the case into his schedule, given that he practices at a considerable distance from the court’s location, I see no reason why it could not have been ready to proceed by April 15, 2011. So, the defence delay in this period is reduced by the 42 days between March and April 15, 2011.

[28] In this regard, I note that there is a small bar in Timiskaming District, with few members who practice criminal law. The accused had consulted with McLeod and one other there. After that, as will be seen, his lawyers were Mr. Fenton, from North Bay, in Nipissing District, about a one hour and forty-five minute drive away, and Mr. Tichinoff and Ms. Sabourin, both of whom are from Timmins, Ontario, in Cochrane District, about a two hour and thirty minute drive away. The distance and travel time involved would certainly have complicated and delayed meeting with and retaining counsel.

[29] The next period in question is from July 13 to September 28, 2011. This had not been attributed by the Crown to defence delay on Crown’s chart, but Crown counsel argued that it could be attributed to the defence because the Crown had found a note indicating that the pre-trial conference that had been scheduled for August 9 had not taken place because defence counsel had failed to call in for it. However, without having better information about what took place, I would not assume that the defence was responsible for that time.

[30] On September 28, 2011, a new pre-trial date was scheduled for October 17, 2011. It went ahead on that date, and the matter was adjourned to October 19, 2011. The Crown attributed the 22 (actually 21) days between September 28 and October 19, 2011 to defence delay. However, again, without better information as to why the October 9 pre-trial did not go ahead, necessitating its re-scheduling, I would not assume that defence delay accounts for that period.

[31] At the hearing of the s. 11(b) application, the Crown agreed that 28 days it had attributed on its chart to defence delay between October 19 and November 16, 2011, was not, in fact, defence delay.

[32] Next is the period from February 8 to July 10, 2012, 120 days that the Crown attributed to defence delay because the defence was not available for a preliminary hearing until July 10.

[33] The December 13, 2011 record shows that the pre-trial dates had been canvassed in March and April 2012, but Mr. Fenton was not available. I note that the Crown did not say with certainty that it could be available then either. So, the matter went on consent to February 8, 2012 to set a date.

[34] On February 8, 2012 dates were canvassed for a one day preliminary hearing. The court suggested dates starting May 29, 2012, for which defence was not available. July 10, 2012 was scheduled. That would suggest defence delay of 42 days, not 120. However, in the court record for July 10, 2012, the Crown revealed that it had met with its two main witnesses late the previous day and received new information leading to a new investigation which would result in further charges against the accused, and a lot of further disclosure. Furthermore, the Crown had been made aware of a typed statement of the complainant made approximately two years prior which had just been disclosed to the defence. The court suggested and Fenton agreed that it would make sense to deal with everything at the same time, if possible, and that defence needed to review the new disclosure. Furthermore, a trial matter was to proceed, allegedly leaving little chance of reaching the preliminary hearing in this matter that day. The Crown noted that the trial was scheduled for two days, was older and should proceed first. The West case was adjourned to the next day, when Fenton was available, to be spoken to. When the possibility of proceeding with the West preliminary hearing was raised, Crown counsel was not sure that it could proceed due to questions around witness availability. In these circumstances, I am not persuaded that any of the 120 days can be attributed to defence delay.

[35] The next periods in contention are from September 6, 2012 to January 14, 2013, and from then until May 10, 2013. The case was in court on September 6, 2012 to set a date for preliminary hearing. Fenton was not available on November 20, the first date offered by the court that the Crown was available. January 4, 2013 was available to the court and defence but not to the Crown. January 14, 2013 was agreed upon. The Crown contends that the 45 day period from November 12 to January 4, 2013 is defence delay, with which I would agree, but for what followed.

[36] Fenton brought on October 30, 2012 an application for an adjournment for the preliminary hearing because he would not be available in January 14, 2013 as a result of eye surgery scheduled to be performed on December 17, 2012 that was predicted to keep him off work until January 17, 2013. The record for October 30, 2012 shows that Fenton had dates available in February but that the court was not available, and then nothing until May, 2013. The matter went to November 13, 2012 to set a date. On that date, Fenton had an agent in court, and a date of May 10 was confirmed. It appears to have been arranged ahead of the court appearance. The Crown then stated that at the previous court appearance the Crown had indicated that it was able to first proceed in January as originally scheduled and, as I understand it, from then on, but Fenton had indicated that he was not available until May. As noted above, however, it appears that Fenton had had on October 30 dates in February which were not available to the court. Also, the record for October 30, 2012 shows that a police officer involved was not available in March. So, without better information about when exactly the court and the Crown were available, one cannot tell with precision how much of the delay between January 14, 2013, when the preliminary hearing was first scheduled to take place, and May 10, 2013, to which it was adjourned, is defence delay. Nevertheless, the Crown has attributed 107 days from the November 13, 2012, when the January 14, 2013 preliminary hearing date was set, to May 10, 2013 when the preliminary hearing was re-scheduled to, to defence delay. That overlaps the 45 days of defence delay from November 20, 2012 to January 4, 2013, double counting them.

[37] I would resolve this as follows. The 45 days from November 20, 2012 to January 4, 2013 will be counted as defence delay, as the Crown has done. The 107 days from November 13, 2012 to May 10, 2013 will not. Instead, the 22 day period from January 14 to February 5, 2013, the first date subsequent to January 14 that Fenton appears to have been available, will be treated as an exceptional circumstance, which I understand to be consistent with R. v. Jordan’s description of such circumstances. As such, it would be taken into account later in the calculation. Beyond that, the information available is not clear enough to attribute the period up to the May 10, 2013 pre-trial hearing to defence delay.

[38] The preliminary hearing was commenced on May 10, 2013, but was not completed. July 26, 2013 was set for its continuation. However, on July 23, 2013, Fenton brought an application which was granted to adjourn the continuation because of further health matters that would prevent him from attending to this matter until after August 8, 2013. The record indicates that the continuation was re-scheduled to October 11, 2013, as the Crown was not available until then. Counsel agreed to proceed by way of criminal discovery in order to get an earlier date then would otherwise be available. The Crown would attribute 77 days from July 26 to October 11, 2013, when the preliminary hearing was completed, to defence delay.

[39] Again, I would attribute the 14 day delay from July 26, 2013, when the continuation of the preliminary hearing was adjourned from, to August 9, 2013, after which Fenton was expected to be available again, to exceptional circumstances to be accounted for later. After that, it appears that the Crown was not available until the October 11, 2013 continuation. Therefore, I would not attribute any of the 77 days between July 26 and October 11, 2013 to defence delay.

[40] Fenton brought an application to be and was removed as solicitor of record for the accused on December 3, 2013. The application documents indicate both that there were problems getting instructions from the accused and that the accused was not meeting his financial obligations to Fenton. The accused’s affidavit says that he could not afford Fenton’s services. He retained new counsel, Mr. Tichinoff, by mid-January 2014.

[41] Up until this point, the case had been in the Ontario Court of Justice. It had just moved to the Superior Court of Justice, about four years after the initial Information was laid.

[42] The endorsement of January 20, 2014 records that counsel agreed to hold a pre-trial conference on February 18, 2014. However, on February 18, the conference was adjourned on consent to a date to be set, because Tichinoff had not yet received the disclosure from Fenton, the accused’s previous counsel. The conference was not held until April 14, 2014.

[43] The Crown attributes 57 days between February 18 and April 14, 2014 to defence delay on the basis that the defence delayed in obtaining the file, did not ask the Crown for a new copy, and had enough to file a Pre-trial Conference Memo. I agree, except that I calculate 55 days.

[44] The next contentious period is from June 5 to July 17, 2014, 42 days that the Crown alleges was defence delay. In court on July 5, the Crown advised that Tichinoff had told her that morning that he would be recommending to the accused a re-election to trial by judge alone, but had not had a chance to meet with him yet. So, instead of setting a date for jury trial that might not be necessary, the Crown had encouraged him to adjourn for one month to get those instructions. It was therefore adjourned on consent to the July 17, 2014 assignment court. The Crown now argues that back in February 2014, four months earlier, Tichinoff had noted in his Pre-trial Conference Report the possibility of a re-election. The defence counters that the adjournment was in an effort to expedite the matter.

[45] I note that the record shows that, on July 17, 2014, Tichinoff still did not have instructions on point, but indicated that he would have by a second pre-trial conference on September 9, 2014. In the interim, he set dates in January 2015 for a judge alone trial and February 2015 for a jury trial. Eventually, the accused re-elected to judge alone, and the trial was scheduled to start February 2, 2015.

[46] I agree with the Crown’s position on this time period. I see no reason why the accused’s instructions on point could not have been obtained sooner, as the issue was identified by February, 2014. Even if that is not so, the instructions that that adjournment was for were not obtained during it. Instead, time was reserved for both judge alone and jury trials. That could have been done on June 5, 2014.

[47] On February 2, 2015, the trial was adjourned because of new disclosure which led to a third party records application. That application was scheduled for March 27, 2015, but the accused and defence counsel failed to appear due to a scheduling mix-up. It was then heard on April 24, 2015 and the records were ordered to be produced for the court’s review, on consent. Production was on May 14, 2015. On June 8, 2015 the records were ordered to be released to the Crown and the defence.

[48] Also, on February 2, 2015, the case was adjourned to the February 6, 2015 assignment court to set a date for trial. The court recorded that the defence waived s. 11(b) “relative to the adjournment of the trial at this time”. On February 26, 2015, counsel scheduled a third pre-trial for May 26, 2015. It was adjourned to August 14, 2015 on consent with a notation that further evidence was required. On August 4, 2015, the pre-trial conference was held and the case adjourned to the next assignment court, September 10, 2015.

[49] From there it was adjourned to the October 15, 2015 assignment court for Tichinoff to get instructions, with no comment from the Crown. From there it went to the November 12, 2015 assignment court for Tichinoff to get instructions with the Crown’s consent. On November 12, 2015 the trial was scheduled to start April 11, 2016.

[50] The Crown takes the position that the waiver extends to the next trial date, some 14 months. There is considerable logic in this position, given the circumstances in which the waiver was given. There are also problems, however. The language used in discussing the waiver when it was given was not precise as to its extent. Nor do I see any further mention of it in the records up to and including November 12, 2015 when the trial was set for April 11, 2016, nor any pressure from the Crown to set an early date. As defence counsel points out, a new trial date could have been set even while the third party records application was ongoing. The record from November 12, 2015, when the April 2016 trial date was set, shows only generally that other dates were canvassed. There is no information as to whether there were earlier dates offered and, if so, why they were not selected. I note, however, there would usually be in this jurisdiction time available much sooner then what was scheduled, especially for trial by judge alone.

[51] So, taking these considerations into account, I would extend the waiver to October 15, 2015, but not attribute the period from then to the April 11, 2016 trial date to defence delay.

[52] By early March 2015, the Crown had advised Tichinoff of a potential conflict he had in this matter. Unknown to Tichinoff, the complainant had retained another lawyer in his firm for a child protection matter, which had nothing to do with her being a witness in this case. Understandably, the firm’s conflict check had turned up nothing about the accused. Tichinoff had never discussed the complainant with the other lawyer and, after the conflict came to his attention, he had instructed that lawyer to transfer the complainant’s file to other counsel. Tichinoff sought advice and consulted the Law Society of Upper Canada’s directive on point. Based on that, he advised the Crown on June 9, 2015 that he was satisfied that he was not required to withdraw from representing the accused. The matter proceeded as previously outlined, and the April, 2016 trial dates were set on November 12, 2015. However, the Crown wrote to Tichinoff on December 31, 2015 to the effect that he should get off of the record even though it would add additional delay to the case. Tichinoff then took what he thought was the safest course and applied to be and was removed as counsel of record, on March 24, 2016. The April 2016 trial dates were vacated.

[53] Under the circumstances the Crown attributes the period from April 11, 2016 onward to defence delay, which the defence opposes.

[54] Given that the conflict issue came to light by early March 2015, it is hard to understand why the Crown did not push to have this resolved sooner when it knew by June, 2015 of Tichinoff’s position that it did not require him to get off of the record. Between then and December 2015 when the Crown again raised the issue with Tichinoff, a pre-trial conference was held and the April, 2016 trial dates were set. If it had been dealt with sooner after it arose, those trial dates would not likely have had to have been cancelled. It is not clear that there was a conflict that required Tichinoff getting off record, but the Crown pushed the point knowing that it would create further delay in an already very old matter.

[55] Once again, the accused was in a position of seeking a new lawyer. The case was adjourned from the April 28, 2016 assignment court to the May 26, 2016 assignment court for him to get counsel, with the Crown’s agreement.

[56] On May 26, 2016, he stated that he had spoken to a lawyer, (apparently Ms. Sabourin, who he eventually retained) and was trying to come up with the required retainer. The accused deposed in his affidavit that the terms of his release restricted him from taking on all of the work available to him, but he needed a lawyer’s assistance to have the conditions changed, a “catch 22”. Defence counsel submitted that it would be a significant challenge to retain a lawyer at such a late stage after the preliminary hearing and pre-trials, in a serious matter, and that it would not be inexpensive. Although not yet retained, defence counsel was in court that day and indicated willingness to assist the accused on a partial retainer basis to vary his bail conditions.

[57] The Crown added very fairly that it is a serious matter with potentially serious consequences to the accused and it is important for him to have defence counsel, which the accused has wanted to have throughout.

[58] Ultimately, on May 26, 2016, the case was again adjourned to July 7, 2016, with the agreement of the Crown.

[59] On July 7, the accused was not present in court, allegedly because he was away working, but he had been in contact with the Crown who indicated that he had an appointment scheduled with Sabourin. The Crown suggested an adjournment to August 4 but Sabourin, who was present in court on other matters, indicated she would not be available then. The adjournment was then to the September 8, 2016 assignment court at the Crown’s suggestion.

[60] On September 8, 2016, the court was advised by Sabourin’s agent that she had been partially retained, not fully retained for trial, but confirmed trial dates starting February 27, 2017, with or without counsel.

[61] In these circumstances, I would not attribute the period from April 11, 2016 when the trial was to have started to February 27, 2017 when it was re-scheduled for to defence delay. The Crown knew when it pressed Tichinoff to get off record that it would result in further delay, the accused was put in a difficult position in which to try to get new counsel. He and Sabourin appear to have been willing to take steps to move the case forward, the Crown did not object to and even suggested further adjournments, and the case was eventually scheduled for trial with or without counsel. Also, the new trial date was the earliest date available.

[62] The last period in question is from February 27, 2017 to June 5, 2017, 98 days. The trial dates commencing February 27 were vacated and new ones set commencing June 5, 2017, to allow newly retained defence counsel, Sabourin, to bring this delay application. The Crown attributed those 98 days to defence delay. It noted that it took from March 24, 2016 when Tichinoff got off record until January 30, 2017 to fully retain Sabourin, that difficulties coming up with her retainer were noted early in that period, that the accused did not bring a Rowbotham application, and that an application was not made to Legal Aid until the end of November 2016. The accused deposed that he and his wife were both laid off on August 28, 2016 and that he was not able to get employment insurance because of his bail conditions which restricted his availability for work.

[63] It appears that the accused could have applied for legal aid at least two months earlier than he did. If he had done so, it is reasonable to think that the delay application could have been heard on February 27, 2017, which was otherwise scheduled for the trial of this matter, instead of two months later, as it was. In that event, it appears that the court might have accommodated the trial one and one half to two months earlier. There is no evidence of whether the crown could have. In the circumstances, I find that 60 days delay in bringing this application is defence delay. The balance of the period required by this application would not amount to defence delay under R. v. Jordan, as I understand it, because it is not frivolous, nor does it appear to have been just a delay tactic.

Net Delay

[64] In the end, I would reduce the delay that the Crown attributes to the defence by 1,069 days, or 35 months. So, the net delay is 65 months, over twice the ceiling, and is presumptively unreasonable.

Exceptional Circumstances

[65] As previously discussed, I find that a total of 36 days that the Crown had attributed to defence delay falls into exceptional circumstances. Other items which the Crown’s factum suggest are exceptional circumstances have been dealt with in terms of defence delay. Obviously, 36 days does not reduce the delay to, let alone below, the ceiling.

[66] The Crown agreed that it is not a particularly complex case. Also, the Crown allowed that there was no transitional exception to be made.

Result

[67] As the presumption of unreasonable delay has not been rebutted in this matter, the accused’s s. 11(b) right to be tried within a reasonable time has been infringed and there shall be a stay of the proceedings entered.

[68] Counsel were not able to advise the court of any case that had approached the length of delay of this case. I observed that, in the record, there were occasional references to delay but little done about it. Even after attributing a substantial amount to defence delay, the net delay is extraordinary. Crown counsel quite candidly and fairly noted the apparent complacency revealed in the record, something decried in R v. Jordan. He also referred to the passage in R. v. Askov where the Supreme Court of Canada noted at paragraph 50:

It is clear that the longer the delay, the more difficult it should be for a court to excuse it. …very lengthy delays may be such that they cannot be justified for any reason.

He submitted that, in this case, even with the delay that the Crown initially attributed to the defence and other circumstances being taken into account, the delay is possibly too long. That may well be but, having already decided on a stay on the basis of the Jordan framework, I will not deal with that point.

[69] I wish to thank counsel for their efficient and candid approach to the argument of this application.

J. A. S. Wilcox Released: May 8, 2017

COURT FILE NO.: CR-13-00000027 DATE: 20170508 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – DARCY WEST Applicant DECISION ON s. 11(b) application J. WILCOX Released: May 8, 2017