CITATION: R. v. Tsega, 2017 ONSC 3090

COURT FILE NO.: 11-RM2878

DATE: 2017/05/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

SAM TSEGA

Applicant

Mark Moors and Dallas Mack, for the Respondent

Mark Ertel and Meaghan Thomas, for the Applicant

HEARD: March 29, 30, 2017

RULING #6: SECTION 11(b) APPLICATION

Table of Contents

Nature of the Proceedings. 2

Jordan Framework. 3

Analysis. 6

Calculating the Total Period of Delay. 6

(a) Sentencing Delay. 6

(b) Appellate Delay. 9

Delay Waived by the Defence. 14

Delay Solely Caused by the Defence. 14

(a) Period Relating to Bail Issues. 14

(b) Period Relating to Conflict Issues. 15

Delay due to Exceptional Circumstances. 16

(a) Are there any discrete, exceptional circumstances?. 16

(i) Judicial reserves to make rulings: 62 days. 16

(ii) Additional Time Required at Preliminary Inquiry: 133 days (4.5 months) 17

(iii) Additional Time Required at Trial: 63 days. 17

(iv) Defence certiorari application and the appeal therefrom: 861 days (28.25 months) 18

(v) Deduction for Discrete, Exceptional, Events. 19

(b) Is the case exceptionally complex?. 19

Transitional Provisions. 21

Disposition. 24

Aitken J.

Nature of the Proceedings

[1] By way of application heard on March 29-30, 2017, Sam Tsega sought a stay of proceedings under s. 24(1) of the Charter[^1]on the grounds that the period of delay from the date he was initially charged until the anticipated end of his trial following sentencing, a period of approximately six years and seven months, was unreasonable pursuant to s. 11(b) of the Charter and the principles enunciated in R. v. Jordan, 2016 SCC 27, 398 D.L.R. (4th) 381. On April 5, 2017, I dismissed Mr. Tsega’s application. These are the reasons for that dismissal.

[2] The factual context in this case raises interesting questions regarding the correct application of the Jordan framework. Some of those questions include:

• What is meant by “the end of the trial”?

• Is the delay occasioned by both the Crown and Defence pursuing certiorari proceedings and appeals therefrom following the preliminary inquiry to be excluded from the calculation of the period of delay?

• Can the reality that there are co-accused whose evidence is required for the successful prosecution of the accused in question, resulting in the need for separate trials and some delay, serve as partial justification for a finding of complexity?

Jordan Framework

[3] In the recent case of R. v. Beaudin, 2017 ONSC 1079, at paras. 5-13, I summarized my understanding of the analytical framework mandated under Jordan for use on s. 11(b) applications under the Charter. I repeat that summary here:

[5] In Jordan, the Supreme Court of Canada – albeit a divided court – confronted the criminal justice system’s complacency with delay by introducing a new framework for s. 11(b) applications under the Charter. The new framework can be summarized as follows.

[6] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling of 30 months for cases tried in the superior courts, the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances (Jordan, at paras. 46-47, 68). The presumptive ceiling takes into account inherent time requirements under Morin[^2] and the increased complexity of criminal cases over the last 25 years (Jordan, at para. 53). Once the ceiling has been reached, it is assumed that the accused suffered prejudice to their Charter rights to liberty, security of the person, and a fair trial (Jordan, at para. 54).

[7] If the total delay (minus defence delay or delay attributable to exceptional circumstances) falls below the ceiling of 30 months for cases tried in the superior courts, the onus is on the defence to show that the delay was still unreasonable. “To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have” (Jordan, at para. 48; emphasis in original). Stays beneath the ceiling are expected to be rare and limited to clear cases.

[8] Defence delay includes any delay waived by the defence or any delay caused solely by the conduct of the defence. A defence waiver can be explicit or implicit but must be clear and unequivocal and based on the accused’s full knowledge of his or her rights (Jordan, at paras. 60-61). Delay caused solely by the defence comprises “those situations where the accused’s acts either directly caused the delay … or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1227-28, quoted in Jordan, at para. 63). Such delay includes delay caused if the court and the Crown are ready to proceed, but the defence is not (Jordan, at para. 64). That being said, defence actions legitimately taken to make full answer and defence are not considered defence delay. Defence counsel must be allowed preparation time, even where the court and the Crown are ready to proceed, and defence applications that are not frivolous will generally not count against the defence (Jordan, at para. 65).

[9] Where the total delay (less defence delay) exceeds the ceiling, the Crown can only rebut the presumption of unreasonable delay if the Crown can show that there were exceptional circumstances causing the extra delay (Jordan, at para. 81). “Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (Jordan, at para. 69; emphasis in original). Exceptional circumstances need not be rare. Generally, “exceptional circumstances” fall under two categories: (1) discrete events, and (2) particularly complex cases (Jordan, at para. 71).

[10] An example of a discrete event is where a witness unexpectedly recants his or her evidence while testifying, requiring the Crown to change its case. Another is if the trial goes longer than reasonably expected (Jordan, at para. 73).

[11] Cases may be complex for a variety of reasons relating to the nature of the evidence and the nature of the issues. Complexity can include proceeding jointly against multiple co-accused, if proceeding in this fashion is in the interest of justice (Jordan, at para. 77). Such circumstances may justify the court finding that the total delay was reasonable, despite exceeding the ceiling. However, any delay resulting from the exercise of prosecutorial discretion must still conform to the accused’s s. 11(b) rights (Jordan, at para. 79); R. v. Vassell, 2016 SCC 26, 337 C.C.C. (3d) 1).

[12] In Jordan, at paras. 92-104, the majority discussed transitional provisions to apply to those cases where charges were laid prior to the release of Jordan on July 8, 2016. The Court’s directions can be summarized as follows:

The new framework, including the presumptive ceiling, applies to cases in the system, subject to two qualifications:

• the first deals with cases in which the total delay (minus defence delay and delay caused by exceptional circumstances) exceeds the ceiling, and

• the second deals with cases in which the total delay (minus defence delay and delay caused by extraordinary circumstances) falls below the ceiling.

In regard to the first qualification, if the Crown can establish that there is a “transitional exceptional circumstance” making the time the case has taken justified based on the parties’ reasonable reliance on the law as it previously existed, then the delay attributed to such circumstance should be deducted from the total delay.

In regard to the second qualification, the defence need not demonstrate having taken initiatives to expedite matters for the period of delay prior to July 8, 2016.

Considerations that should inform whether the parties’ reliance on the previous state of the law was reasonable include:

• prejudice to the accused,

• the seriousness of the offences charged,

• the existence of significant institutional delay problems in the jurisdiction where the case is being heard, and

• the need to afford Parliament, the legislatures, and Crown counsel time to respond to the change of the law brought into effect by Jordan.

[13] More specifically, the Court warned that the integrity of our justice system and the public’s perception of the administration of justice would be seriously damaged if the application of the new legal framework in Jordan resulted in thousands of charges being stayed, as was the result following Askov. Most importantly, the Court emphasized, at paras. 100-103, that the assessment of what is or is not a reasonable delay for cases already in the system should not be dramatically different under the Jordan framework from what it was under the Morin framework:

Further, if the delay was occasioned by an institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework before this decision was released, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system.

Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one. Change takes time….

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 v. The Queen, [1986] 1 S.C.R. 863, 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.

Analysis

Calculating the Total Period of Delay

(a) Sentencing Delay

[4] On September 21, 2010, Mr. Tsega was charged with the manslaughter of Michael Swan. On June 30, 2016, Mr. Tsega was found guilty of manslaughter. The period from charge to conviction was five years, nine months, nine days, which is 69.3 months.

[5] Mr. Tsega’s 11(b) application was unsuccessful and sentencing submissions were heard on April 10, 2017. The period from charge to sentencing would have been six years and seven months, or 79 months.

[6] A preliminary question is: How should the total period of delay be calculated – from the date of charge to the date of conviction, or from the date of charge to the date of sentencing or anticipated date of sentencing?

[7] In R. v. MacDougall, [1998] 3 S.C.R. 45, the Supreme Court of Canada held that s. 11(b) of the Charter applies to sentencing proceedings. However, in Jordan, the Supreme Court provided no guidance as to whether the time required for sentencing post-conviction should be part of the calculation as to whether the delay exceeds the ceilings mandated in the judgment. In Footnote 2 of the decision, the Supreme Court stated:

This Court has held that s. 11(b) applies to sentencing proceedings (R. v. MacDougall, [1998] 3 S.C.R. 45). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. This issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.

[8] A review of the post-Jordan trial jurisprudence reveals that, in most cases, the delay is calculated from the date of the charge to the date of conviction[^3] though, in one case similar to this one,[^4] the delay was calculated up to the date of sentencing. MacDougall offers little assistance as to whether the Jordan ceilings, as currently set, should capture the time up to sentencing.

[9] Section 11(b) of the Charter provides that “[a]ny person charged with an offence has the right … to be tried within a reasonable time” (emphasis added). In considering the applicability of s. 11(b) to the sentencing portion of a criminal trial, McLachlin J., as she then was, in MacDougall, posed two questions: (1) is a person who has pleaded guilty or who has been found guilty “charged with an offence”; and (2) is sentencing part of the process of being “tried”?

[10] McLachlin J., at paras. 10-11, explained that s. 11 of the Charter comprises a wide range of rights (nine in all) which protect an accused from the moment he or she is charged with an offence to the final resolution of the matter, including sentencing. These rights are only provided to a “person charged with an offence”.

The rights contained under s. 11 accompany the accused through his or her journey through the criminal process and provide different forms and levels of protection for each stage of proceedings…

All of these rights inhere in a person “charged with an offence”. It follows that “charged with an offence” cannot be restricted to a particular phase of the criminal process. Rather, what is required is an interpretation that “harmonizes as much as possible” all of the subsections of s. 11: R. v. Potvin, [1993] 2 S.C.R. 880, at p. 908, per Sopinka J. for the majority. Textually, the only feasible interpretation of “charged with an offence” is an expansive one which includes both the pre-conviction and post-conviction periods.

[11] After acknowledging that in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 350, and in R. v. Potvin, [1993] 2 S.C.R. 880, at p.911, the Supreme Court had made comments that suggested, post-conviction, an offender could not be considered “a person charged with an offence” under s. 11 of the Charter, McLachlin J. rejected such a categorical interpretation of such comments. All she would allow was that: “[i]t may be that, depending on the subsection at issue, ‘charged with an offence’ in s. 11 bears different meanings” (para. 16).

[12] After an extensive review of earlier jurisprudence, McLachlin J. concluded that pre-Charter, the process of being tried included sentencing, and that this interpretation should inform the meaning of “tried” in s. 11 of the Charter.

[13] Finally, McLachlin J. concluded that the interests of both the accused and society protected by s. 11(b) of the Charter, although modified as a result of the conviction, can still be prejudiced through a delay in sentencing. On the basis of both the wording and purpose of s. 11(b), McLachlin J. concluded that s. 11(b) of the Charter extended to sentence delay (para. 39).

[14] Although in light of McDougall, it cannot be said that s. 11(b) does not apply to the sentencing period, there still is scope to conclude that the Supreme Court of Canada did not intend the 30-month ceiling for cases in superior court to necessarily cover the period up the sentence in all cases. The Court specifically declined to make such a pronouncement in Jordan. In my view, in the context of this case, the Jordan calculation of delay should be from the date of charge to the date of conviction.

[15] The Supreme Court in Jordan made it clear that the ceiling it dictated was to apply to most cases – including murder cases and other cases involving serious offences. “A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance” (para. 78). Therefore, Jordan must be interpreted in a fashion that makes the 30-month ceiling in the Superior Court of Justice feasible in most murder cases. I take judicial notice of the following realities.

[16] In the East Region in Ontario, it is standard for there to be two Crown counsel and two Defence counsel on murder trials. Therefore, scheduling of the major events throughout murder proceedings, such as the preliminary inquiry, trial, major applications, and sentencing, usually requires coordination of the schedules of four counsel who are most often busy, senior members of the local bar. During the period when the Tsega matter was in the Superior Court of Ontario, it was standard in the East Region for long criminal trials, such as murder trials, to be scheduled approximately a year out – not only due to the need to coordinate the schedules of counsel, but also due to the need to coordinate the availability of a judge and appropriate courtroom space for the entire period of the pre-trial motions and the trial proper. In the Superior Court of Justice, the court schedule in any given year is prepared by the previous summer.

[17] Once a conviction is entered in a serious criminal matter for which sentencing submissions are required, it is standard practice in the East Region in Ontario for a pre-sentence report to be ordered. These reports often take up to two months to be completed – especially if the offender is in custody. In some cases, Gladue reports must also be obtained. Once the pre-sentence report is available, counsel require time to prepare sentencing submissions. It is standard practice in this Region for judges to reserve their sentencing decision for a few weeks so that they have the opportunity to review the materials usually submitted only on the morning of the sentencing hearing. All of this is to say that the sentencing process alone, if all goes smoothly, usually takes – at a minimum – three to four months following conviction.

[18] If it were assumed that the period between conviction and sentence was included in the 30- month ceiling, that could effectively mean that the Jordan framework requires long criminal trials leading to convictions or acquittals to be completed in the Superior Court of Justice within as little as eight to nine months following their arrival from the Ontario Court of Justice. Even if judges and courtroom space were readily available to make this viable – something that has not been the case for many years in Ottawa – it is highly unlikely that everything would align, including the availability of counsel, to make this feasible in the majority of long criminal cases. Surely the Supreme Court would not want its directions in Jordan to be interpreted in a way that resulted in the majority of serious criminal charges in a particular region being stayed.

[19] In any event, due to the particular circumstances of this case, I consider it more appropriate to calculate the total delay as being from the date of charge to the date of conviction.

[20] On June 30, 2016, following Mr. Tsega’s conviction, the matter was put over to July 7, 2016 for a bail revocation hearing. On that date, bail was revoked and a pre-sentence report was ordered, it being anticipated that the report would not be available prior to September. On July 22, 2016, a September date for a sentencing hearing was offered but considered too early by Defence counsel. At the time, Defence counsel was planning to seek an initial ruling as to whether the mandatory minimum sentencing provisions of s. 236(a) of the Code applied and, if the Court ruled that they did, to bring a constitutional challenge to those provisions. Ultimately, November 21, 2016 was set for sentencing submissions.

[21] On November 21, 2016, then Defence counsel advised the court that, due to a situation that had arisen in the preceding few days, he had no choice but to ask to be removed as solicitor of record. His request was granted. The matter was put over to successive Assignment Courts or Bail Review Courts to ensure that Mr. Tsega quickly retained new counsel. There was delay in this happening, even though the Court had been advised on November 21, 2016 that new counsel had already been approached. Once Mr. Tsega had retained counsel, that counsel immediately advised the Crown that Mr. Tsega would be seeking a stay of proceedings under ss. 24(1) and 11(b) of the Charter. The dates of February 13, 14, and 24, 2017 were reserved for the 11(b) submissions, with the dates of March 29-31, 2017 being reserved for sentencing submissions, if necessary. In that not all of the transcripts were available to allow the 11(b) application to proceed on February 13, 2017, the matter was put over to March 29-31, 2017 for 11(b) submissions, with the dates of April 10-12, 2017 being reserved for sentencing submissions, if necessary. The 11(b) application was able to commence on March 29, 2017 only because Crown counsel, even though short-served, had taken steps to obtain further transcripts of court proceedings and copy relevant e-mails between counsel to ensure that the Court had a more complete record of events than the record filed by the Defence. No criticism of Defence counsel is intended through this observation, as it was a challenging task for someone new to the file to assemble the volumes of relevant documents. Nevertheless, if Crown counsel had not stepped in to assist Defence counsel in this way, the 11(b) application would have to have been adjourned once again.

[22] Despite the release of the Jordan decision on July 8, 2016, the issue of an 11(b) application was not raised by the Defence until November 21, 2016. Mr. Tsega’s decision to bring an 11(b) application precipitated his counsel being removed from the record. There was a delay in Mr. Tsega retaining new counsel. All of this resulted in a delay in the Defence ordering all of the transcripts required to pursue the 11(b) application, necessitating a further adjournment. Furthermore, the reason the Defence initially sought a later date than September for sentencing submissions was to enable counsel to mount an argument against the applicability of the mandatory minimum sentence applicable to offenders under s. 236(a) of the Code when a firearm is used in the commission of the offence of manslaughter. Once new Defence counsel was retained, this argument was abandoned.

[23] For these reasons, I conclude that, in the circumstances of this case, it is the period between charge and conviction that must meet the Jordan ceiling. This means that the starting point for the Jordan calculation is 69.3 months.

[24] Even if I had initially included the sentencing period in calculating the length of proceedings, later in the analysis, I would have deducted much of the period from September 2016 to April 2017 as being delay caused solely by the Defence.

(b) Appellate Delay

[25] The next question is whether the two periods of time, first, when the Crown brought certiorari proceedings following Mr. Tsega’s committal on second but not first degree murder, and then appealed the certiorari decision to the Ontario Court of Appeal and, second, when the Defence brought certiorari proceedings following Mr. Tsega’s subsequent committal on first degree murder, and then appealed the certiorari decision to the Court of Appeal, should be excluded from the calculation of delay under the Jordan framework.

[26] In the pre-Jordan era, Sopinka J. in R. v. Potvin, [1993] 2 S.C.R. 880, at para. 56, articulated the general principle that: “s. 11(b) [of the Charter] does not apply to delay in respect of an appeal from conviction by the accused nor an appeal from an acquittal by the Crown”. As well, it does not apply to an appeal from a judicial stay of proceedings (para. 56).[^5]

[27] In Potvin, Sopinka J. noted that section 11 of the Charter starts with: “[a]ny person charged with an offence has the right …” and is followed by an enumerated list of rights, only one being “to be tried within a reasonable period of time” (s. 11(b)). Consequently, s. 11 of the Charter must be interpreted in a manner that harmonizes as much as possible all of its subsections (paras. 57-58).

… as a general rule “[a]ny person charged” under s. 11 does not include an accused person who is party to an appeal. A particular subsection may apply to appeal proceedings as an exception to the general rule if its purpose and language support this conclusion. After considering the purpose and language of s. 11(b), I have concluded that the interpretation that gives effect to both of these elements and best harmonizes the other subsections is that the subsection applies to the pre-trial period and the trial process but not to appellate proceedings. (para. 59)

[28] In considering the interests that s. 11(b) is meant to protect, Sopinka J. reasoned that a person convicted of an offence is no longer presumed to be innocent, and is not entitled to a number of the rights enumerated under s. 11. A person acquitted of an offence is no longer subject to any charges. Sopinka J. concluded that neither of these categories of individuals fell under the category of a “person charged with an offence” within the meaning of s. 11 of the Charter. Sopinka J. concluded that s. 11(b) applied to the post-charge pre-trial period and the trial process, but not to “appellate proceedings” from acquittals, convictions, or stays of proceedings (para. 69).

[29] The analysis of Sopinka J. sits easily with that of La Forest J. in R. v. Lyons, [1987] 2 S.C.R. 309, where the Supreme Court held that a person subject to a dangerous offender application is not a person “charged with an offence” under s. 11 of the Charter. It is difficult to square both Lyons and Potvin with MacDougall where the Supreme Court found offenders awaiting sentence were still protected under s. 11(b) of the Charter.

[30] One potential avenue of distinction was hinted at by McLachlin J. in para. 26 of MacDougall when she was explaining why the word “tried” in s. 11(b) should be interpreted so as to include the sentencing process:

In Potvin, Sopinka J., for the majority, suggested that if it was intended that s. 11(b) apply not only to the trial but also to final adjudication on appeal, more apt wording would have been employed (p. 912). However, as noted, the fact that Canadian jurisprudence pre-Charter held that “trial” includes the sentencing process, suggests that nothing more than the word “trial” was required to cover both determination of guilt and sentencing. While it may be possible to argue that more specific language than “tried” is required to embrace the appellate process, the same argument cannot be made with respect to the sentencing process. (Emphasis added)

[31] The decision in Potvin that s. 11(b) does not apply to appellate delay includes the delay occasioned by successive appeals to higher courts following the first level of appeal (R. v. McDonald, 2015 ONCA 791, 2015 CarswellOnt 17685, at paras. 21-24; R. v. Spencer, 2015 SKQB 62, 2015 CarswellSask 121, at para. 22; and R. v. Baros, 2014 ABCA 367, 2014 CarswellAlta 2133, at paras. 49-50).

[32] There is no indication in Jordan that the law set out in Potvin regarding s. 11(b) of the Charter and appellate delay has changed (see R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 335; R. v. Windibank, 2017 ONSC 855, 2017 CarswellOnt 1593, at para. 64; and R. v. Richard, 2017 MBQB 11, 2017 CarswellMan 60, at para. 28).

[33] That being said, Potvin and Jordan leave open the question of how certiorari applications following preliminary inquiries, and appeals therefrom, should be treated for the purpose of 11(b) applications. These proceedings are generally considered interlocutory in nature. Some pre-Jordan jurisprudence excluded delay attributable to interlocutory appeals from the calculation of impermissible delay under s. 11(b) of the Charter (see R. v. Harding, 2002 NBBR 114, 2002 NBQB 114, at paras. 95-98). There is no post-Jordan higher court jurisprudence directly on point offering guidance as to how the almost four years of delay attributable to certiorari applications, and appeals therefrom, in this case, should be handled within the Jordan analytical framework.

[34] In Manasseri, when arguing the 11(b) application, both Crown and Defence counsel agreed that 18 months should be deducted from the total delay in regard to the period of time following the preliminary inquiry when the Crown moved to quash the discharge, the Crown’s certiorari application was dismissed, the Crown appealed, and the Ontario Court of Appeal allowed the appeal, quashed the discharge and remitted the matter to the preliminary inquiry judge to determine whether the accused (Mr. Kenny) should be committed on manslaughter, or on some lesser and included offence. Mr. Kenny was subsequently committed on manslaughter. Watt J.A. was content to proceed on the basis of counsel’s agreement to exclude the 18-month delay from the calculation of total delay under Jordan. He observed that Mr. Kenny was not a “person charged with an offence” from the date of the discharge until the discharge was quashed or, more likely, until his formal committal on manslaughter was subsequently entered.

[35] Watt J.A. cautioned that he was not finally determining that, post-Jordan, “appellate delay” should be deducted in calculating the total length of time between the charge and the actual or anticipated end of the trial. He made the following general observations, at paras. 337-340:

What seems envisaged at the first step of Jordan is a simple mathematical calculation of the time lapse between two fixed events: charge and the end of trial. What seems to be required is an answer to a question: How long did it take from charge to verdict to complete the case? Implicit is the assumption that during this entire period the accused would be a “person charged with an offence” under s. 11(b).

Despite leaving a final decision about the relevance of appellate delay to the Jordan framework to another day, I offer two observations about it in the circumstances of this case.

First, unlike this case, Potvin did not involve extraordinary remedy proceedings to review a discharge at the conclusion of a preliminary inquiry and an appeal thereafter. Potvin involved a Crown appeal from a stay of proceedings entered by a trial court. That said, the Criminal Code provides no right of appeal from a discharge, or for that matter, from a committal, at the conclusion of a preliminary inquiry. The only judicial review mechanism is to invoke the extraordinary remedy jurisdiction of the superior court and thereafter the rights of appeal conferred by s. 784(1) of the Criminal Code. It would seem incongruous to treat the time taken in pursuit of extraordinary remedies differently than that taken in appeals from convictions, acquittals or stays of proceedings as Potvin mandates.

Second, s. 11(b) may only be invoked by a “person charged with an offence”. Under Potvin, a person who is a party to an appeal is not a “person charged with an offence”: Potvin, at pp. 908-090. The same could be said of a person discharged at the conclusion of a preliminary inquiry. That person is not a “person charged with an offence” from the date of discharge until the discharge is set aside and committal ordered or a direct indictment preferred under s. 577 of the Criminal Code.

[36] Defence counsel argued that, since Mr. Tsega was still a “person charged with an offence” while the two certiorari applications and the two appeals to the Ontario Court of Appeal were being pursued, ergo, he was entitled to the protection of s. 11(b) of the Charter during the period of time it took for those proceedings to work their way through the Superior Court of Justice and then the Ontario Court of Appeal.

[37] Crown counsel argued that, what is important about the certiorari proceedings, and the appeals therefrom, is their appellate nature, not the fact that Mr. Tsega was a “person charged with an offence” while the proceedings were ongoing. He noted that it would be a strange outcome if a certiorari application from a discharge on all charges was treated differently from a certiorari application from a committal on one or more charges following the preliminary inquiry, which would be the case if the focus was only on whether the person continued to be “charged with an offence”. This outcome would not only be strange, but perverse, in that an accused would have s. 11(b) protection when he or she had carriage of the appeal proceedings from a committal on one or more charges (still being a “person charged with an offence”) and could potentially use a drawn out appeal to lengthen delay, but would have no 11(b) protection when the Crown had carriage of the appeal proceedings following a discharge on all counts and was pursuing appeal opportunities to the limit. In reality, from the individual’s perspective, the two situations may feel very similar.

[38] The Defence relies on R. v. Richards, 2016 ONSC 6372, [2016] O.J. No. 5694, where Salmers J. declined to subtract from the 30-month ceiling the time it took for the Defence to pursue unsuccessful certiorari proceedings. This case is of limited assistance. First, no reference was made to Potvin or Manasseri and the question of whether certiorari proceedings following a preliminary inquiry are in the nature of an appeal and covered under the heading of appellate delay dealt with in Potvin. Second, the focus of the analysis by Salmers J. was on whether the Defence certiorari application was frivolous. Understandably, Salmers J. concluded that it was not and that, consequently, the period taken to pursue the certiorari application did not amount to “defence delay” under Jordan.

[39] In this case, Mr. Tsega remained, at all times, a person “charged with an offence” in that Wright J. initially committed Mr. Tsega to stand trial for second degree murder. Following certiorari proceedings before McLean J., the matter was sent back to Wright J. for reconsideration. Wright J. committed Mr. Tsega on first degree murder. That committal was upheld by Smith J. and the Defence then commenced an appeal to the Ontario Court of Appeal. Should it matter that Mr. Tsega was always a person “charged with an offence”? Should the delay attributable to certiorari proceedings commenced by the Crown, and any subsequent appeal therefrom, be treated in one fashion where there is a complete discharge of an accused following a preliminary inquiry and be treated in an entirely different fashion where the accused has been committed on some charges but not all, or not the most serious one sought by the Crown? Put another way, during such time as a certiorari application, and any subsequent appeal therefrom, is taken by the Crown or by the accused following the preliminary inquiry, should the accused’s s. 11(b) rights vary depending on whether he has been fully discharged or remains committed to stand trial on some offence?

[40] In my view, it is hard to square the notion that the term, a person “charged with an offence”, in the opening line of s. 11 of the Charter is to be interpreted inflexibly and literally in light of the varied nature of the rights enumerated in s. 11, and in light of the Supreme Court of Canada’s conclusion in MacDougall that s. 11(b) applies to sentencing proceedings. Following conviction and pending sentence, an accused is no longer a person “charged with an offence”. He or she is a person “convicted of an offence”. Despite that, s. 11(b) continues to apply until the trial process at first instance, which traditionally has been interpreted as including sentencing, has been completed.

[41] In considering how the appellate delay in this case should be treated for purpose of the Jordan analysis, I considered the analogy of a train trip from Windsor to Moncton. According to Via Rail’s website, such a train trip could be accomplished in approximately 30 hours, if the passenger wished to get from Windsor to Moncton by train as quickly as possible. The trip would require changing trains in Toronto and Montreal, with a delay of approximately one and a half hours in Toronto and two hours in Montreal, but neither Via Rail, nor the passenger, would deduct these waiting periods from the calculation of the length of the journey to get from Windsor to Moncton. Those periods, just like the time it takes to move a case from the Ontario Court of Justice to the Superior Court of Justice following a preliminary inquiry, is simply part of the time of the anticipated journey.

[42] If, however, the passenger has to spend a day in each of Toronto and Montreal before continuing on his or her journey, one would not normally describe the length of the passenger’s Windsor/Moncton train journey as being 30 hours plus 48 hours – one would still calculate the time it took the passenger to get from Windsor to Moncton as being 30 hours. To do otherwise would be misleading as to how long the traveller’s train journey actually was.

[43] In the same vein, I see Mr. Tsega’s journey through the trial of his charges as taking the following periods of time:

• 17.8 months: from September 21, 2010 (the date Mr. Tsega was charged) to March 14, 2012 (the date the Crown filed its Notice of Application in regard to the first certiorari application following the preliminary inquiry before Wright J.);[^6]

• 4.6 months: from February 12, 2016 (when Mr. Tsega abandoned his appeal of the certiorari decision of Smith J. to the Ontario Court of Appeal) to June 30, 2016 (when Mr. Tsega was found guilty of manslaughter).

[44] By this calculation, Mr. Tsega’s journey through the trial process took 22.4 months – a period of delay well under the ceiling of 30 months stipulated in Jordan.

[45] During the period from March 14, 2012 to February 12, 2016,[^7] Mr. Tsega (our passenger) was not on the trial train taking him closer to his destination of an acquittal or a conviction. During this period, it was as if the trial train was parked on a siding waiting for the resolution of whatever had required Mr. Tsega to take a hiatus from his trip before he could resume his journey.

[46] Defence counsel acknowledged that, if I determined that the period of time during which certiorari proceedings, and any appeals therefrom, were happening was to be excluded from the Jordan calculation, then Mr. Tsega’s application under ss. 24(1) and s. 11(b) of the Charter should be dismissed. I made that determination and, therefore, dismissed the application.

[47] However, if it is determined on appeal that the delay associated with some or all of the interlocutory appeals in this case should not have been deducted for the purpose of calculating delay under the Jordan calculations, it might be helpful for me to explain why, even under that scenario, I would have dismissed Mr. Tsega’s application for a stay. To this end, I will continue with a Jordan analysis on the basis that the total delay was 69.3 months, instead of the 22.4 months that I have found.

Delay Waived by the Defence

[48] The Defence did not formally waive any delay.

Delay Solely Caused by the Defence

(a) Period Relating to Bail Issues

[49] The Crown argued that a period of 51 days from October 5, 2010 to November 25, 2010 should be categorized as Defence delay because, during this period, the Defence focused on getting further disclosure for the purpose of a bail application, rather than taking steps to move the case forward. It was only on January 6, 2011 that Defence counsel wished to set a date for a judicial pre-trial.

[50] I reject this argument. Although, technically, there may not be a right to disclosure before bail is considered, from a practical point of view, Defence counsel needs some disclosure before being in the position of advocating effectively for a client on a bail application. As well, for the judicial pre-trial to be as useful as possible, the Defence has to have received adequate disclosure in advance.

[51] The first judicial pre-trial was held on January 18, 2011 and, around this time, preliminary inquiry dates of August 22-September 2, 2011 were reserved. In the meantime, there was a bail hearing on November 19, 24, and 25, 2010; the release of the bail decision on December 2, 2010; a bail review hearing on February 18 and March 15, 2011; and the release of that decision on March 15, 2011.

[52] Defence counsel’s initial focus on bail was a normal and expected part of the criminal proceedings and, in the circumstances of this case, a very important step. Mr. Tsega was released on bail on December 3, 2010 and remained in the community until after his conviction for manslaughter in June 2016.

(b) Period Relating to Conflict Issues

[53] In September 2013, the Defence commenced a certiorari application to quash Mr. Tsega’s committal on first degree murder. It was anticipated that all necessary transcripts would be available by January 2014. On December 9, 2013, Crown counsel alerted Defence counsel that another lawyer at their firm was representing, or had recently represented, a key Crown witness in the Tsega matter – a witness whom Defence counsel would want to cross-examine. Crown counsel took the position that Defence counsel had to get off the record due to a conflict of interest. Defence counsel refused to do so. Crown counsel brought a motion to have Defence counsel removed. Defence counsel advised the Court on January 10, 2014 that they were not available to argue the motion until the third or fourth week in March, 2014. To accommodate Defence counsel, April 3, 2014 was set for the motion.

[54] As of March 31, 2014, Defence Counsel had still not served any responding materials on the removal motion, despite having been served with the Crown’s materials on February 5, 2014. Crown counsel was advised that the Defence would be seeking an adjournment of the removal motion because the lead Defence counsel was not going to be available on April 3, 2013 and there was inadequate time to have materials prepared and cross-examinations on affidavits conducted. Crown counsel argued strenuously against the adjournment but an adjournment until May 20, 2014 was ordered. At this point, Defence counsel were intending to have other members of their firm argue the removal motion. Crown counsel advised Defence counsel that they considered this inappropriate.

[55] On May 14, 2014, Defence counsel advised Crown counsel that they had retained outside counsel, Marie Henein, to represent them on the removal motion and that Ms. Henein was not available until June 2014. At the request of Defence counsel, the matter was put over to June 23, 2014.

[56] At some point shortly before June 17, 2014, Defence counsel finally served their motion materials on Crown counsel. Based on the contents of those materials, Crown counsel proposed a resolution of the conflict issue that would allow Defence counsel to remain on record but would limit the extent to which the Crown witness in question could be cross-examined by Defence counsel. This resolution was accepted by Defence counsel.

[57] The point of all this was that Defence counsel knew from December 9, 2013 forward that there was an issue about their continuing to represent Mr. Tsega in light of another member of their firm having accepted a retainer from a key Crown witness that Defence counsel had already cross-examined at the preliminary hearing in this case. Defence counsel delayed in retaining outside counsel to deal with the removal motion, and delayed in filing responding materials. Once those materials were filed and Crown counsel spoke to the outside counsel, a simple resolution became apparent. Meanwhile, six months had passed, and the Defence’s certiorari application was delayed. At the Assignment Court on July 25, 2014, Defence counsel asked for a date in October. Crown counsel were available in September but not October. Eventually, Crown and Defence counsel agreed on November 25, 2014. Defence counsel showed no hurry in having this application heard and, in August, advised Crown counsel that they would only serve their materials sometime in October.

[58] In these circumstances, responsibility for any of the delay associated with the conflict issues and the delay in scheduling the certiorari application rests with the Defence. I would deduct 8 months as Defence delay. Even if I did not deduct this period of delay as Defence delay, it would have been captured under discrete, exceptional circumstances and deducted there.

Delay due to Exceptional Circumstances

[59] Following the Jordan analysis, had the period of delay remained at 61.3 months following a consideration of any Defence delay, the delay would be presumptively unreasonable. The Crown would bear the onus of establishing that the delay was reasonable, having regard to the presence of exceptional circumstances.

(a) Are there any discrete, exceptional circumstances?

[60] The Crown advances three reasons to deduct 258 days by virtue of discrete events.

(i) Judicial reserves to make rulings: 62 days

[61] Although the delay occasioned by a judge reserving a decision is beyond the control of Crown counsel and is something about which the Crown cannot take any steps to remedy, it must be remembered that the Supreme Court was considering “discrete events” under the heading of “exceptional circumstances”. There is nothing “exceptional” about a judge reserving a decision; in fact, it is likely the norm following preliminary inquiries in the Ontario Court of Justice and following trials in the Superior Court of Justice, except in the simplest of cases. Where the necessity to reserve, and the length of the delay while the decision is under reserve, may come into play in the Jordan analysis is under a consideration of how the complexity of the case has impacted delay.

[62] What were discrete events that delayed this Court’s release of decisions on rulings and thereby delayed the completion of the trial were two weeks when I was scheduled to be on holiday or attending the mandatory semi-annual conference of the Superior Court of Justice and two weeks during which a close friend and colleague died and a family member became critically ill, requiring two emergency hospitalizations. Had the trial been completed within the timeframe originally estimated by counsel, it would have been long over before these other events occurred. The total time associated with these discrete events is approximately one month.

(ii) Additional Time Required at Preliminary Inquiry: 133 days (4.5 months)

[63] At the preliminary inquiry, both Kristopher McLellan and Kyle Mullen, two of the three other men charged with the murder of Michael Swan, refused to testify, despite having provided a number of statements to the police implicating Mr. Tsega. Their evidence was very important to the Crown’s case against Mr. Tsega. The Crown was forced to bring a motion under s. 540(7) of the Code to have their statements admitted. This resulted in the preliminary inquiry being adjourned on August 31, 2011, instead of being completed by September 2, 2011, as anticipated. Wright J. ruled on the motion on September 29, 2011. The first available continuation dates for the preliminary inquiry were from January 4-6, 2012, with the preliminary inquiry actually finishing on January 13, 2012.

[64] Throughout, the Crown acted reasonably in dealing with the challenging issue of how to access the evidence of Messrs. McLellan and Mullen. On July 7, 2011, the Crown had given notice to the Defence that it intended to file the statements of Mr. McLellan and Mr. Mullen at the preliminary inquiry under s. 540(7) of the Code. The Defence advised the Crown only on August 18, 2011 that it was objecting to the Crown’s motion. The Crown therefore called Messrs. McLellan and Mullen to testify at the preliminary inquiry. When they refused to be sworn, the Crown again sought to tender their statements under s. 540(7) of the Code. The Defence objected. The Crown had no option but to bring its motion under that section. The Crown was faced with a situation which, although not unforeseen, was unavoidable and beyond the Crown’s control. The Crown acted reasonably and attempted to deal with the situation as efficiently as possible. The associated delay of 4.5 months falls under the category of discrete, exceptional, event.

(iii) Additional Time Required at Trial: 63 days

[65] The Crown argues that the need for the Court at trial to hear submissions and make rulings in regard to the admissibility of certain wiretaps relating to Joshua Jackson and Susan Jackson and certain out-of-court statements of Messrs. McLellan and Mullen led to delay which could be classified as discrete, exceptional, events.

[66] Although the Crown, quite reasonably, had thought that the first issue had been resolved prior to trial, and was surprised by Defence counsel raising objections on the issue during the trial, the issue was dealt with in a few days and amounted to “just one of those things” which arise from time to time during trials through misunderstandings between counsel. I would not attribute any more significance to it than that, though the need for a formal written ruling did add to the delay in releasing reasons after the close of the Crown’s case and prior to Mr. Tsega being put to his election.

[67] The second issue regarding the out-of-court statements of Messrs. McLellan and Mullen led to a significant delay while the Court heard submissions, reserved, and wrote a lengthy ruling. As noted above, the Crown had no control over the behaviour of Messrs. McLellan and Mullen. Crown counsel called both men as witnesses, but they refused to cooperate and received punishment as a result. Their evidence was important to the Crown’s case. The Crown very efficiently and effectively sought a ruling to have their out-of-court statements admitted. This issue proved to be the most challenging and time-consuming issue at trial. It is a discrete, exceptional, circumstance within the meaning of Jordan. I estimate two weeks to have been devoted to this issue.

(iv) Defence certiorari application and the appeal therefrom: 861 days (28.25 months)

[68] In submissions, the Crown argued – successfully – that the appellate period covering the certiorari applications and the appeals therefrom should not be included in the Jordan calculation. For this reason, the Crown did not advance the argument that the Defence certiorari application, and appeal therefrom, amounted to a “discrete event”.

[69] If I am wrong in deducting the delay attributable to the certiorari applications and subsequent appeals from the total delay, then, when applying the Jordan analysis, I would deduct the period of the Defence certiorari application to Smith J. and the Defence appeal therefrom to the Ontario Court of Appeal as delay attributable to a discrete, exceptional, event. Those type of events do not have to be rare. They do not have to be unforeseen or unforeseeable, if they are unavoidable from the perspective of the Crown and the Crown does its best to remedy them when they arise.

[70] The Defence certiorari application was something over which the Crown had no control. Mr. Tsega had every right to bring a certiorari application after he was committed to stand trial for first degree murder by Wright J. and to appeal the certiorari decision of Smith J. to the Ontario Court of Appeal. It cannot be said, however, that the Crown was acting unreasonably in initially opposing those proceedings. The Ontario Court of Appeal had already ruled in the Crown’s favour on an appeal from the certiorari decision in regard to the committal of Messrs. McLellan, Mullen, and Barnett.

[71] Defence counsel argued that it was Crown counsel who added to the delay inherent in the Defence bringing certiorari proceedings by raising a potential conflict of interest on the part of Defence counsel and insisting that Defence counsel get off the record. In my view, Crown counsel was well within their rights to raise the conflict issue and to insist that Defence counsel do something about it. Unfortunately, Defence counsel refused to acknowledge the obvious problem and compounded it by having someone from within their own firm, where the conflict had arisen, attempt to represent them in regard to the conflict issue. It was only once truly independent counsel was retained that the matter was quickly resolved. As stated above, I attribute to the Defence all of the delay relating to the conflict issue (8 months). The balance of the time attributable to the Defence certiorari application and the subsequent appeal therefrom, 20.25 months, is to be deducted from the total as a discrete exceptional circumstance.

[72] To the credit of Crown counsel, once it became clear that there was no possibility of keeping the pre-trial and trial dates reserved for this case if the appeal to the Court of Appeal was to proceed sometime in 2016, the Crown agreed to a new indictment charging Mr. Tsega with second degree murder. Had the Crown not agreed to do this, the trial in this matter could easily have been delayed for a further year. The resolution advanced by the Crown meets the requirement under Jordan that the Crown take steps to remedy a delay associated with a discrete, exceptional, event when that event arises.

(v) Deduction for Discrete, Exceptional, Events

[73] The total deduction for discrete, exceptional, events is 26.25 months, made up of:

• Delay of 1.0 month at trial due to discrete, exceptional events impacting on the trial judge’s availability;

• Delay at the preliminary inquiry of 4.5 months due to the refusal of witnesses to testify;

• Delay of .5 months at trial due to the refusal of witnesses to testify; and

• Delay of 20.25 months due to the Defence certiorari application, and the appeal therefrom.

[74] This leaves a balance of delay of approximately 35 months (61.3-26.25).

(b) Is the case exceptionally complex?

[75] This case was exceptionally complex from start to finish, both in terms of the evidence collected and the legal issues involved.

[76] The investigation involved four separate police services. More than 103 witnesses were interviewed, 74 of them made video recorded statements. Part VI authorizations under the Code resulted in 39,129 intercepted communications. Ten production orders were executed capturing phone records from 27 different phones. Nine search warrants were executed involving homes in Ottawa and Toronto and 900 photographs were taken. Several expert witnesses were consulted and retained, including those in the fields of pathology, DNA, firearms, GSR, and cellular phone operations. In all, 308 items were seized or collected, resulting in 130 exhibits. In the end, there were 12 disclosure packages containing over 20,000 pages of disclosure along with electronic media amounting to over 51 GBs of disclosure. In short, the evidence was complex. This resulted in the hearings taking longer to complete. By way of example, the bail hearing took four days and the preliminary inquiry took 11 days.

[77] In addition, the legal issues were complicated.

[78] The fact situation raised the legal issue as to whether ss. 21(2) (defining parties to an offence on the basis of a common intention to carry out an unlawful purpose and to assist each other therein), and s. 231(5) of the Code, could be combined to support a conviction for first degree murder. At the time, this was an open issue (R. v. Ceballo, 2007 ONCA 715, [2007] O.J. No. 3977). This was only resolved when the Ontario Court of Appeal released its decision in R. v. Ferrari, 2012 ONCA 399, 2012 CarswellOnt 7801 – after the preliminary inquiries for the Toronto 3 and for Mr. Tsega had occurred.

[79] Section 231(5) of the Code reads:

231(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(e) section 279 (kidnapping and forcible confinement)

[80] The preliminary inquiry of Mr. Tsega’s accomplices, Messrs. McLellan, Mullen, and Barnett, took place before Fraser J. prior to the preliminary inquiry of Mr. Tsega. Fraser J. declined to commit the Toronto 3 for first degree murder on the basis of s. 231(5)(e), finding that there had been no confinement of Michael Swan. At Mr. Tsega’s preliminary inquiry, Wright J. concluded that Mr. Tsega could not be charged with first degree murder if the Toronto 3 were not committed to stand trial for that offence.

[81] The Crown brought certiorari proceedings following the preliminary inquiry of the Toronto 3. Warkentin J. dismissed the application. On appeal from that decision, the Ontario Court of Appeal determined, on March 25, 2013, that Mr. McLellan should be committed to stand trial for first degree murder, finding that there was sufficient evidence to potentially support a finding that Michael Swan had been confined. The matter was remitted to Fraser J. to also determine whether Messrs. Mullen and Barnett were a substantial and integral cause of Mr. Swan’s death.

[82] The Crown also brought certiorari proceedings following Mr. Tsega’s preliminary inquiry. The hearing of that application was adjourned on December 10, 2012 pending the outcome of the appeal of the decision of Warkentin J. to the Court of Appeal. This made perfect sense, even though it resulted in a delay of six months (until June 2013) in having the certiorari application heard in the Tsega matter. For the Superior Court to hear and determine the certiorari application in the Tsega matter without first having the benefit of the Court of Appeal’s decision in regard to the Toronto 3’s committal could have resulted in inconsistent decisions and a waste of the court’s time.

[83] The Defence mischaracterized this delay as being caused by the Crown. On December 10, 2012, the presiding judge recommended that the matter be adjourned due to the risk of conflicting decisions, but he was willing to proceed if the Defence insisted. After a brief recess to consider the matter, both the Crown and the Defence consented to the adjournment.

[84] On the return of the certiorari application in June 2013, when the key issue was whether Mr. Tsega could be considered a substantial and integral cause of Mr. Swan’s death, McLean J. determined that Wright J. had erred and the matter was sent back for his reconsideration. The re-hearing before Wright J. took two and a half months to complete. Wright J. committed Mr. Tsega to stand trial for first degree murder. The Defence brought an unsuccessful certiorari application before Smith J. and then appealed his decision to the Ontario Court of Appeal. The certiorari application took two months to be heard and an additional three and a half months for the decision to be released.

[85] The challenging legal question relating to the charge for which Mr. Tsega should be committed took 46.2 months to determine; however, I have already dealt with the delay of 8 months associated with the conflict of interest issue and the delay of 20.25 months associated with the Defence’s certiorari application and appeal to the Court of Appeal. This leaves a balance of approximately 18 months which can be attributed to the complexity of the legal issues involved in this case. This brings the period of delay well below the 30 months mandated in Jordan, without even considering a further deduction for the complexity of the evidence and the complexity of the evidentiary rulings that had to be made during the course of the trial.[^8]

[86] A further deduction for extraordinary complexity would also be justified on the basis of the difficulties presented due to Mr. Tsega being one of four accused charged with the killing of Mr. Swan. In order for the Crown to successfully prosecute Mr. Tsega, it was necessary for Mr. Tsega’s charges to be handled separately from those of Messrs. McLellan and Mullen so that the statements they made implicating Mr. Tsega could potentially be admitted into evidence at Mr. Tsega’s trial. The question of whether those statements should be admitted into evidence was a challenging issue for both the preliminary inquiry judge and the trial judge. The witnesses were co-accused, and determining whether their statements were credible or trustworthy was a complicated exercise. Their statements were not sworn or videotaped. They were audiotaped statements not taken under oath. They were provided at a time when the men were incarcerated. Finally, the witnesses’ refusal to testify made them unavailable for cross-examination.

[87] Issues of joinder and severance also arose in the case. Initially Messrs. McLellan, Mullen, and Barnett were going to be tried separately from Mr. Tsega. When Mr. Barnett’s counsel was unavailable for the first available trial date for Messrs. McLellan and Mullen in September 2013, his case was severed from theirs to protect their 11(b) rights. Messrs. Tsega and Barnett were then joined in an effort at efficiency. Their cases were subsequently severed when Mr. Barnett’s counsel was unavailable in early 2014, when Mr. Tsega’s counsel was available.

[88] Considering the calculated delay is well below the 30 month ceiling mandated in Jordan (now being 17 months), I consider it unnecessary to actually quantify the delay attributable to these issues to the extent that they have not already been accounted for above under discrete, exceptional events.

Transitional Provisions

[89] Even had I found that the total delay (less delay attributable to exceptional circumstances) was more than 30 months, I would have found, applying the transitional provisions, that the delay was not unreasonable. The Crown has satisfied me that the time this case took was justified based on the parties’ reasonable reliance on the law as it previously existed. The previous expectations were set out in R. v. Morin, [1992] 1 S.C.R. 771, 53 O.A.C. 241 and reviewed in R. v. Qureshi (2004), 192 O.A.C. 50, 190 C.C.C. (3d) 453. They involved a balancing of the accused’s rights to liberty, security, and a fair trial, with society’s interests in ensuring that those charged with criminal offences are treated fairly while also ensuring that criminal charges are decided on their merits.

[90] In Appendix A to these Reasons, I provide a table of dates, events, and reasons for the delays between events. As can be seen from that table, I calculate the total of institutional delay (from the initial charge to sentencing) at 14.7 months – well below the maximum of 18 months of institutional delay previously mandated in Morin. Most of the delay in this case related to the certiorari and appeal proceedings (38 months) and inherent/neutral (including intake) delay (21.1 months). I note that a significant portion of the inherent/neutral delay related to numerous judicial pre-trials that both the Crown and Defence agreed to in order to manage complex evidentiary and legal issues. This intense involvement of judges in managing the case helped to streamline the manner in which evidence was tendered at trial and resulted in a judge-alone trial with much evidence being admitted in summary fashion, rather than a much lengthier judge and jury trial being heard late in 2016 or early in 2017.

[91] Even if some of what I have characterized as inherent/neutral delay was re-characterized as institutional delay so as to bring institutional delay over the 18 month suggested maximum, I would still find, after balancing all of the factors, that, under the Morin analysis, Mr. Tsega’s 11(b) rights were not infringed.

[92] Mr. Tsega was charged with a very serious offence – second degree murder. Society has a strong interest in seeing that those charged with such serious offences are brought to justice.

[93] The East Region, and particularly Ottawa, has been “plagued by lengthy, persistent, and notorious institutional delays”, occasioned, in part, by Ottawa’s expanding population and by vacancies in its complement of judges not being filled in a timely fashion. Throughout these proceedings, Crown and Defence counsel, together with Trial Coordination personnel, cooperated to schedule trial dates as early as possible, even when interlocutory proceedings remained outstanding, so as to ensure no greater delay than necessary occurred between the date when the parties were ready for trial and the date the trial was to commence. This resulted in trial and pre-trial motion dates being set on four separate occasions, with dates being vacated when the interlocutory proceedings were not yet complete. Eventually, in order to avoid further delay, the Crown agreed to proceed on a second degree murder charge, even though Mr. Tsega had been committed on first degree murder, simply so that the trial dates could be preserved.

[94] Although normally with the length of delay in this case, prejudice to the accused would be inferred, I do not consider prejudice to Mr. Tsega to be a strong factor in the Morin analysis. Mr. Tsega was on bail from December 3, 2010 to July 7, 2016. He presented minimal evidence regarding prejudice to him, aside from the terms of his bail.

[95] In regard to Mr. Tsega’s liberty interests, he was incarcerated from September 21, 2010 until December 3, 2010, but otherwise was on bail until after his conviction. As I summarized in my sentencing decision,[^9] Mr. Tsega’s bail conditions were not particularly onerous; to a great extent, he was able to carry on a normal life.

[96] In regard to Mr. Tsega’s security interests, there is no question that he suffered stigmatization (particularly in being expelled from Carleton University when the university learned that he was being tried for first degree murder), loss of privacy (he was obliged to live with his mother and on certain occasions be in the company of his sureties), stress (from the outstanding criminal charges), and anxiety (from not knowing what the future held for him). I cannot conclude that he incurred legal costs over the years it took to complete his trial, as no evidence was tendered in this regard.

[97] No evidence was tendered nor argument made to the effect that the delay in this case prejudiced Mr. Tsega’s fair trial rights. In this regard, I note the following:

• The evidence of the witnesses who were present in the Swan residence at the time of his death was tendered in the form of transcripts from earlier proceedings, with only minimal oral evidence.

• Many of the witnesses were police witnesses with notes of their involvement or with videos and transcripts of their involvement.

• Danielle Fortier, from Rogers, had prepared a report.

• Much of the evidence was in the form of wiretaps or other electronically recovered data.

[98] I also note that Mr. Tsega had the choice of accepting the decision of Smith J. on the certiorari application and of arguing at trial that the Crown had not made out a case for first degree murder. Instead, Mr. Tsega chose the procedural route of appealing the decision of Smith J., as was his right. This process resulted in a considerable delay in reaching trial. Had Mr. Tsega been truly prejudiced by the delay, he had another option available to him, aside from an appeal of the order of Smith J. In making this observation, I make no criticism of Mr. Tsega or his counsel for the decision taken, but simply note its impact on delay.

[99] Finally, I note that, although Mr. Tsega had made the decision to bring an 11(b) application by November 21, 2016, he was tardy in retaining new counsel when the counsel who represented him throughout the proceedings could no longer act. As well, new counsel was somewhat slow in getting on the record, reviewing the file, receiving formal instructions, ordering all necessary transcripts, and serving an application so that the 11(b) application could be heard as early as possible. This tardiness resulted in the scheduled application date having to be adjourned for a month and a half.

[100] Of particular significance is that, in the course of negotiating a resolution of the Defence’s appeal of the certiorari decision of Smith J. and of paving the way for a judge-alone trial in March 2016, Defence counsel confirmed with Crown counsel that they would not be bringing an 11(b) application before trial as long as the trial commenced in March and lasted two weeks. No such undertaking was given if the trial had to be rescheduled to the fall of 2016. The trial commenced on March 21, 2016 but was not completed within two weeks – something both counsel must have anticipated at the commencement. The two week estimate was clearly off the mark and likely given only to secure the earliest possible trial date. Final submissions were completed on June 10, 2016 with a decision rendered on June 30, 2016. Despite the trial going longer than two weeks, the Defence did not pursue an 11(b) application during the trial or immediately following conviction.

[101] Defence counsel’s confirmation in February 2016 that the Defence would not be bringing an 11(b) application in March 2016, although not a formal waiver of the time up to the completion of the trial, was a strong indication that, until that point, the Defence’s assessment was that an 11(b) application would not be successful under the Morin principles. In other words, both parties were placing reliance on the law as it previously existed. As I outline in Appendix A, where I provide the reasons for delay under the Morin analysis, the parties’ understanding that the institutional delay in this case was, at that time, within the Morin guidelines, was reasonable.

Disposition

[102] It is for these reasons that Mr. Tsega’s s. 11(b) application was dismissed on April 5, 2017.

Aitken J.

Released: May 26, 2017

APPENDIX A

DELAY CALCULATIONS UNDER THE MORIN FRAMEWORK

Dates

Time from Previous Event

Classification

Event / Reason for Adjournment

Court

February 21, 2010

N/A

Date of the offence.

September, 21 2010

N/A

Information sworn.

September 22-24, 2010

3 days

Inherent/Neutral

First appearance – Crown opposing release.

OCJ

September 25-30, 2010

6 days

Inherent/Neutral

Remand – waiting for Crown disclosure to set bail hearing.

October 1-5, 2010

5 days

Inherent/Neutral

Remand – Defence requesting adjournment to meet with the Crown.

October 6-8, 2010

3 days

Inherent/Neutral

Remand – adjournment in light of upcoming counsel meeting.

October 9-13, 2010

5 days

Inherent/Neutral

Remand – adjournment for second counsel meeting.

October 14-18, 2010

5 days

Crown

Remand – adjournment to confirm Crown availability.

October 19-21, 2010

3 days

Inherent/Neutral

Remand – dates set for bail hearing on November 18 – 19.

October 22- November 17, 2010

27 days

Institutional – first available date for bail hearing

Delay to commencement of bail hearing.

November 18-19, 2010

2 days

Inherent/Neutral

Bail hearing.

November 20-23, 2010

4 days

Inherent/Neutral

Bail hearing adjourned – time estimate had been inadequate.

November 24-25, 2010

2 days

Inherent/Neutral

Completion of bail hearing.

November 26-December 2, 2010

7days

Inherent/Neutral

Awaiting bail decision – accused released December 3, 2010.

December 3-January 6, 2011

35 days

Inherent/Neutral

Defence request for J.P.T. – adjournment for J.P.T.

January 7, 2011

1 day

Inherent/Neutral

J.P.T. heard. P.H. dates reserved – August 22 – September 2, 2011. No evidence as to why these P.H. dates were chosen or as to any earlier availability of the Court or of counsel. No proof of institutional delay.

January 8-August 21, 2011

226 days

Inherent/Neutral

Delay between J.P.T. and P.H. Case remanded several times after January 7 for dates to be formally set, but these remands did not impact on reserved dates for P.H. During this period, a bail review hearing was also conducted. This did not further delay the case.

August 22-31, 2011

10 days

Inherent/Neutral

P.H. held but not completed. P.H. adjourned to allow Wright J. to prepare ruling on s. 540 applications after key Crown witnesses refused to testify.

September 1-29, 2011

29 days

Inherent/Neutral

Ruling provided on September 29. Matter put over to first available continuation date for Court: January 4-6 2012.

September 30, 2011 – January 3, 2012

96 days

Institutional

Adjournment to continue P.H. – court could not offer earlier date, though Defence counsel available.

January 4, 5, 12, 13, 2012

10 days

Inherent/Neutral

Continuation of P.H.

January 14 – February 16, 2012

34 days

Inherent/Neutral

Decision from P.H. under reserve.

February 17, 2012

1 day

Inherent/Neutral

Decision from P.H. provided. Tsega committed to stand trial.

February 18-March 2, 2012

14 days

Inherent/Neutral (Intake)

Remand to S.C.J. Assignment Court March 2, 2012 at which time J.P.T. scheduled for March 19, 2012.

March 3-18, 2012

16 days

Inherent/Neutral (Intake) or from March 14ff could be Other – certiorari proceedings

Remand to J.P.T. in S.C.J. (date of March 13 offered but Defence counsel unavailable).

SCJ

March 14, 2012

(incl. above)

Meanwhile, Crown commenced certiorari proceedings

March 19 2010

1 day

Inherent/Neutral (Intake) or Other – certiorari proceedings

J.P.T. in S.C.J. Case adjourned to May 1, 2012.

March 20- April 30, 2012

42 days

Inherent/Neutral or Other – certiorari proceedings - Neutral

No evidence was tendered as to why the J.P.T. was adjourned to May 1 2012, whether Crown or Defence counsel asked for this adjournment, whether the Court had earlier dates, and whether Crown or Defence counsel were available on those dates. Therefore no evidence of institutional delay.

May 1, 2012

1 day

Inherent/Neutral or Other – certiorari proceedings - Neutral

Trial date set. Defence counsel available earlier, but only available court date for 4 week trial was February 19, 2013 with pre-trial motions set for December 10, 2012.

May 2-December 9, 2012

222 days

Institutional or Other – certiorari proceedings - Neutral

Adjournment to first available court date for 4-week trial plus 1 week pre-trial motions.

October 18, 25, 2012 and October 25, 2012

(incl. above)

Inherent or Other – certiorari proceedings - Neutral

A further J.P.T. was held before McKinnon J. on October 18, 2012 and October 25, 2012. December 10th week for pre-trial motions to be used for Crown certiorari application with pre-trial motions occurring at commencement of trial on February 19, 2013.

December 10, 2012

1 day

Other – certiorari and appeal proceedings - Neutral

At insistence of Defence, Crown returned certiorari application before McLean J. who persuaded counsel to adjourn certiorari application, on consent, pending OCA decision on appeal from certiorari proceedings in related case.

December 11, 2012-January 10, 2013

31 days

Other – certiorari and appeal proceedings - Neutral

Waiting for OCA decision in related case.

January 11, 2013

1 day

Other – certiorari and appeal proceedings - Neutral

Pre-trial and trial dates set to Sept. 2013, certiorari application set for June 2013.

January 12-April 4, 2013

83 days

Other – certiorari and appeal proceedings - Neutral

Waiting for OCA decision in related case.

April 5, 2013

1 day

Other – certiorari and appeal proceedings - Neutral

Appearance of all counsel on Tsega and Toronto 3 cases. OCA decision on appeal of certiorari re Toronto 3 had been released March 25, 2013. Matter to return to P.H. judge to commit McLellan on first degree murder and to consider whether Mullen and Barnett were substantial and integral causes of Swan’s death. Trial of Toronto 3 scheduled for September. Counsel for Barnett unavailable. Crown to sever Barnett from others and have him tried with Tsega. Defence wanted to maintain September trial date – that not possible because McLellan/Mullen scheduled for same time. Defence seeking earliest trial date.

April 6-June 6, 2013

61 days

Other – certiorari and appeal proceedings - Neutral

Waiting for date that had been set for certiorari application.

June 7, 2013

1 day

Other – certiorari and appeal proceedings – Neutral

Tsega certiorari application argued.

June 8-27, 2013

20 days

Other – certiorari and appeal proceedings - Neutral

Waiting for decision on certiorari application.

June 28, 2013

1 day

Other – certiorari and appeal proceedings - Neutral

Certiorari decision rendered in Crown’s favour. Trial dates of May 12, 2014 (4 weeks) and pre-trial dates of March 24, 2014 (one week) set.

June 29-July 2, 2013

4 days

Other – certiorari and appeal proceedings - Neutral

Adjournment to set a date in OCJ.

July 3, 2013

1 day

Other – certiorari and appeal proceedings - Neutral

August 28, 2013 set to re-argue committal before Wright J.

July 4-August 27, 2013

55 days

Other – certiorari and appeal proceedings - Neutral

Adjournment to hearing date in OCJ.

August 28, 2013

1 day

Other – certiorari and appeal proceedings - Neutral

Argument before Wright J. re committal.

August 29-September 12, 2013

15 days

Other – certiorari and appeal proceedings - Neutral

Waiting for decision re committal.

September 13, 2013

1 day

Other – certiorari and appeal proceedings - Neutral

Decision from Wright J. re committal – committed Tsega on first degree murder.

September 14, 2013 – November 24, 2014

436 days

Other – certiorari and appeal proceedings – Neutral OR Defence delay due to refusal of Defence to deal with valid conflict issue until outside counsel was finally retained and resolution was achieved.

Defence brought certiorari proceedings re committal. Delay ensued when Crown sought to have Defence counsel removed as solicitor of record due to conflict of interest. Conflict issue was eventually resolved.

November 25, 2014

1 day

Other – certiorari and appeal proceedings – Neutral

Defence certiorari application argued before Smith J.

November 26, 2014-February 17, 2015

83 days

Other – certiorari and appeal proceedings - Neutral

Waiting for decision of Smith J. on certiorari application.

February 18, 2015

1 day

Other – certiorari and appeal proceedings - Neutral

Trial date of March 21, 2016 and pretrial motions dates of February 24-26, 2016 set.

February 19-March 10, 2015

20 days

Other – certiorari and appeal proceedings - Neutral

Waiting for decision of Smith J. on certiorari application.

March 11, 2015

1 day

Other – certiorari and appeal proceedings – Neutral

Smith J. dismisses Defence certiorari application.

Spring 2015

Other – certiorari and appeal proceedings - Neutral

Defence appeals certiorari decision of Smith J.

March 12, 2015-February 11, 2016

337 days

Other – certiorari and appeal proceedings - Neutral

Defence appealing certiorari decision to OCA.

January 27, 2016

(incl. above)

Other – certiorari and appeal proceedings – Neutral

Certiorari appeal scheduled to be heard in OCA at a time that conflicted with pre-trial motions. Pretrial motion dates of February 24-26, 2015 vacated.

February 12, 2016

1 day

Other – certiorari and appeal proceedings – Neutral

Settlement reached re appeal. Defence’s appeal is withdrawn. Crown agrees to proceed only on second degree murder. Counsel agreed to judge alone trial.

February 13-March 20, 2016

37 days

Institutional, though counsel needed time to prepare for trial once appeal abandoned, so possibly Inherent/Neutral.

Waiting for trial date.

March 21-June 10, 2016

54 days

Inherent/Neutral

Trial including refusal of two witnesses to testify; adjournments for various applications to be brought, materials prepared, and materials reviewed; and time for trial judge to release written reasons for various rulings. Defence would not make election until all reasons regarding rulings had been released.

14 days

Institutional

When trial went longer than originally anticipated, Judge was unavailable due to prescheduled vacation and prescheduled conference.

14 days

Other

Judge was unavailable due to death of friend/colleague and medical emergency and hospitalization of family member.

June 11-29, 2016

19 days

Inherent/Neutral

Time for trial judge to prepare written reasons for judgment.

June 30, 2016

1 day

Inherent/Neutral

Trial – release of reasons for judgment.

July 1-6, 2016

6 days

Inherent/Neutral

Time for counsel to prepare arguments for bail revocation hearing.

FOLLOWING RELATES TO PERIOD FROM CONVICTION TO SENTENCE – NOT INCLUDED IN CALCULATIONS UNDER JORDAN, BUT RELEVANT IN APPLICATION OF MORIN.

July 7, 2016

1 day

Inherent/Neutral

Bail revocation hearing and decision.

July 8-September 30, 2016

85 days

Inherent/Neutral

Awaiting pre-sentence report, Defence counsel’s position on constitutional arguments, coordinating availability of counsel and Court.

October 1- November 20, 2016

50 days

Institutional

First available court date for sentencing hearing, though date in September had been offered and rejected by Defence counsel.

November 21, 2016

1 day

Defence

Defence withdrawal due to conflict – adjournment for new counsel to prepare sentencing.

November 22, 2016-March 28, 2017

128 days

Defence

Defence preparing for s. 11(b) application; ordering transcripts; serving materials.

March 29-30, 2017

2 days

Inherent/Neutral

s. 11(b) application.

March 31-April 9, 2017

10 days

Inherent/Neutral

Adjournment for counsel to prepare for sentencing hearing and for judge to render decision re s. 11(b) application.

April 10, 2017

1 day

Inherent/Neutral

Sentencing hearing.

April 11-12, 2017

2 days

Inherent/Neutral

Preparation of sentencing decision.

April 13, 2017

1 day

Inherent/Neutral

Giving sentencing decision orally.

Classification of Delays – R. v. Tsega

Total delay for OCJ

Classification

Total in days

Total in months

Inherent/Neutral (Intake)

400

13.1

Institutional

123

4.04

Crown

5

.2

Defence

0

0

Other

0

0

Morin guidelines for institutional delay set at 8-10 months in OCJ (here: 4 months.)

Total delay for SCJ (not including delay attributable to certiorari and appeal proceedings)

Classification

Total in days

Total in months

Inherent/Neutral

242

8.0

Institutional

323

10.62

Crown

0

0

Defence

129

4.2

Other: certiorari and appeal proceedings

1157

38.0

Other: personal reasons related to judge

14

.5

Morin guidelines for institutional delay set at 6-8 months in SCJ (here: 10.6 months.)

Overall delays OCJ and SCJ

Classification

Total in days

Total in months

Inherent/Neutral

642

21.1

Institutional

446

14.7

Crown

5

.2

Defence

129

4.2

Other: certiorari and appeal proceedings

1157

38.0

Other: personal reasons related to judge

14

.5

Total

2393

78.7

For cases involving a preliminary inquiry as is the case here (two-stage process), the Morin guidelines for institutional delay would be in the range of 14 – 18 months (here: 14.7 months).

CITATION: R. v. Tsega, 2017 ONSC 3090

COURT FILE NO.: 11-RM2878

DATE: 2017/05/26

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

SAM TSEGA

Respondent

RULING #6– SECTION 11(B) application

Aitken J.

Released: May 26, 2017

[^1]: 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.

[^2]: R. v. Morin, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1.

[^3]: See for example: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 326; R. v. Singh, 2016 BCCA 427, 2016 CarswellBC 3058, at paras, 2 & 25; R. v. Eid, 2017 ONSC 892, 2017 CarswellOnt 1580, at para. 6; R. v. Matheson, 2017 BCSC 166, 2017 CarswellBC 246, at paras. 9 & 16; R. v. Cabrera, 2016 ABQB 707, [2016] A.J. No. 1311, at para. 29; R. v. Rhode, 2016 SKQB 330, [2016] S.J. No. 598, at para. 15.

[^4]: R. v. Swanson, 2017 ONSC 710.

[^5]: R. v. Boutin, 2016 SKQB 77, 2016 CarswellSask 194 is an example of numerous appeals from judicial stays of proceedings where the appellate delay was excluded from the calculation of delay under s. 11(b) of the Charter.

[^6]: In that during the period from March 14, 2012 to October 25, 2012, other court proceedings, such as judicial pre-trials (J.P.T.s) were being held and on May 1, 2012, trial dates were set for February 19, 2013 with pre-trial motions on December 10, 2012, it is arguable that the business of moving the case forward was still occurring. If this period is included in the calculation, and not removed as relating to the certiorari proceedings, it would not affect the outcome. The number of months from September 21, 2010 to October 25, 2012 would be 25.1 months which, when added to the 4.6 months from February 12, 2016 to June 30, 2016, would total 29.7 months – still less than 30 months.

[^7]: Or alternatively from October 25, 2012 to February 12, 2016.

[^8]: Five written rulings were required relating to out-of-court statements by Messrs. McLellan and Mullen (31 pages), discreditable conduct (7 pages), intercepted phone conversations (4 pages), text messages (11 pages), and out-of-court statements by Joshua Jackson (13 pages). As well, formal written reasons were prepared regarding culpability (42 pages), bail revocation (8 pages), and sentencing (16 pages).

[^9]: R. v. Tsega, 2017 ONSC 2256, [2017] O.J. No. 1915, at para. 36.