Court File and Parties

Court File No.: SCA(P) 1345/15 Date: 2017 01 13

Ontario Superior Court of Justice (Summary Conviction Appeal Court)

Between: Her Majesty the Queen, Respondent P. Quilty, counsel for the Respondent

- and -

Sylvain Lacroix, Appellant D. Genis, counsel for the Appellant

Heard: December 9, 2016

Reasons for Decision

(On appeal from the decision of Justice E. A. Ready Dated December 18, 2015)

Fairburn, J.

Overview

[1] In the early morning hours of September 28, 2013, the police responded to a call reporting that a motor home was being operated by an impaired driver. The police located the vehicle parked in a commercial parking lot. The appellant and his friend were both charged with operating the vehicle while impaired by alcohol and while having in excess of 80 mgs of alcohol in 100 mls of blood. On December 18, 2015, the appellant was convicted of the blood-alcohol offence and acquitted of impaired driving.

[2] He appeals against his conviction on the basis that the trial judge erred in dismissing his s. 11(b) Charter application. His argument largely focuses on what he says was the trial judge’s mischaracterization of 7.5 months as neutral time. The appellant says that it was, in fact, delay triggered by Crown conduct and should have resulted in a finding of unreasonable delay under R. v. Morin, [1992] 1 S.C.R. 771. He says that his position has only been strengthened under the new s. 11(b) framework set out in R. v. Jordan, 2016 SCC 27.

[3] Respectfully, I disagree. The trial judge was correct in her characterization of what occurred. For the reasons that follow, the appeal is dismissed.

The General Factual Background

[4] A civilian called the police and reported an impaired driver operating a motor home. The driving occurred in different locations and was seen by different people. It was conceded that the driving took place following 2:00 a.m. The Peel Regional Police were dispatched to locate the vehicle at 2:54 a.m. At 3:04 a.m. they found the motor home parked in a commercial parking lot by a McDonald’s.

[5] The driver’s seat was empty. No one answered the officer’s knock at the door and so he entered the vehicle and located two men. The appellant matched the caller’s description of the driver. He showed signs of impairment and was arrested. A civilian told the police that he had seen two different men driving the vehicle at different times. As such, the second man, who was also exhibiting signs of impairment, was arrested. The arrests were made no later than 3:21 a.m.

[6] The defence conceded that there were no issues with the functionality of the Intoxilyzer device used to take the breath samples. At 4:26 a.m. the appellant registered 231 mgs of alcohol in 100 mls of blood. At 4:48 a.m. he registered 215 mgs of alcohol in 100 mls of blood.

[7] The appellant told the breath technician that he had driven the motor home and parked it where the police found it. He said that he had consumed a beer around 7:30 p.m. the previous evening and probably did not drink again until he was parked by the McDonald’s. He said that he consumed about three regular-sized Budweiser Light beers while parked at that location. While the transcript from his interview in the breath room suggests that the appellant said that he was parked for about four to five minutes before the police arrived, the interviewing officer testified that he believed that the appellant said 45 minutes.

The Crown’s Expert Reports

[8] Dr. Michael Corbett is a forensic toxicologist. He authored a report dated February 6, 2014. It was disclosed shortly after. The appellant’s projected blood alcohol concentration between 2:20 and 3:12 a.m. was from 210 to 259 mgs of alcohol in 100 mls of blood. Among other things, the opinion presumed that there was “no significant consumption of alcohol just prior to the time frame of interest … and/or during that time frame.”

[9] Dr. Corbett authored a further report dated January 29, 2015, after the commencement of the trial. The report dealt with a post-driving drinking scenario involving the consumption of three regular-sized cans of Budweiser Light between 1:50 and 2:30 a.m. Based on this scenario, he opined that at 1:50 a.m. the projected blood-alcohol concentration would be from 174 to 203 mgs of alcohol in 100 mls of blood. At 3:21 a.m. the projected readings would be from 210 to 242 mgs of alcohol in 100 mls of blood.

[10] Given that the driving occurred after 2:00 a.m., even accounting for a post-driving drinking scenario, the appellant’s blood-alcohol level would have well exceeded the legal limit when he was driving.

The Time Line for this Case

[11] The appellant and his friend were arrested on September 28, 2013. They retained the same counsel who appeared on the first court date, October 10, 2013. The matter was put over to October 31, 2013 and then to November 28, 2013. On that day, defence counsel could not appear because he was caught in a jury trial. Crown counsel conveyed defence counsel’s request that the matter go over to January 2, 2014, at which time a judicial pre-trial was set for February 3, 2014.

[12] Following the judicial pre-trial, Botham J. expressed the view that a trial date should be set. Defence counsel said that he was not prepared to do so because he first wanted to see the Crown’s toxicology report and video surveillance from a gas station. When the matter returned on February 24th, counsel said that because the matter was going to trial, a second lawyer would have to be retained. Section 11(b) was waived to March 17, 2014. On the return date the trial was scheduled for January 22, 23 and 26, 2015.

[13] On the first day of trial, the parties appeared before Sarjeant J. who, after forty-one years on the bench, was set to retire the following week. The appellant’s counsel raised a concern about the trial judge’s pending retirement. He said that there may be a need for an adjournment based on something that the Crown might do and, if the trial judge was not available to continue the trial, there would need to be a mistrial. Counsel said that he was in a “delicate” position and could not share anything more. He said that if the Crown did what he thought she might do, he would “refer to a section of the Criminal Code that says that the Court shall grant an adjournment in those circumstances”.

[14] Crown counsel said that she had no idea what counsel was referring to and was “in the dark”. The court was equally in the dark. The matter was eventually moved before another trial judge. The first half day of trial was lost in the shuffle. As well, because of a pre-scheduled matter, the new trial judge could not sit on the third day that had been reserved for the trial. Therefore, 1.5 days of trial time was lost before the trial got started.

[15] Dr. Corbett testified as the last Crown witness on the second day of trial. The Crown asked the expert to offer an opinion on a post-driving drinking scenario, consistent with what the appellant had told the police. Dr. Corbett needed time to make the calculation and so the afternoon break was taken. Counsel were asked to attend at the trial coordinator’s office to obtain a third day so that the trial could be completed.

[16] It was 4:30 p.m. when counsel returned to court. In light of the time, the Crown suggested that the matter be adjourned to the next date, at which time she would complete the examination-in-chief of Dr. Corbett. She said that in the interim she would provide a “revised or an amended toxicologist report” to the defence that addressed the post-driving drinking scenario that had just been posited. The appellant said that the Crown’s case had “changed” and that he would now have to consult with a toxicologist. He said that this was “exactly the situation that [he] expected ... might or might not unfold”.

[17] While the trial judge expressed dissatisfaction with the proposed continuation date of September 10, 2015, she was informed that this was the only date that worked for everyone. Dr. Corbett’s opinion was provided to the defence six days after the adjournment.

[18] Before returning to court on September 10th, both accused sought a stay of proceedings based on unreasonable delay. The applications were dismissed on September 10, 2015. Dr. Corbett’s evidence was then completed.

[19] The matter had to be adjourned once more because the defence wanted to have a civilian witness recalled for further cross-examination. While I will review the details surrounding this adjournment later in these reasons, the court expressed serious frustration with the proposed December 18, 2015 continuation date. Despite this fact, counsel could not agree upon an earlier date that was available.

[20] The civilian witness did not attend on December 18, 2015. Bearing in mind the impact of the witness’ absence on the reasonable prospect of conviction for the appellant’s co-accused, the Crown stayed the charges against him. Following submissions, the appellant was convicted of the blood-alcohol offence.

Reasons for Dismissing the Section 11(b) Application

[21] As this case proceeded before the release of Jordan, the trial judge’s reasons are rooted in Morin.

[22] Justice Ready found nine months of institutional delay leading up to the initially scheduled trial date. She reviewed what occurred before Sargeant J. and the fact that the transfer of the trial to her courtroom cost 1.5 days of trial time. She rejected the defence position that the 7.5 month delay was triggered by the Crown putting an “added scenario” to the toxicologist. The trial judge concluded that counsel was “aware from his client’s own statement that [the] post offence drinking scenario was in play” and should not have been caught “off guard”. In any event, she concluded that the focus on the added scenario being put to the expert was a “red herring” because, in the end, the switch of trial judges created a situation where there was insufficient time to complete the trial.

[23] While each of the defence counsel had many available dates to continue, they only had 28 mutually agreeable dates. The court was available for the trial to continue on six earlier dates, starting February 3, 2015. The Crown was available for all of the court’s dates except one. The whole period from January 23, 2015 to September 10, 2015 was considered neutral.

[24] The trial judge concluded that there was no prejudice and dismissed the application.

The Positions of Counsel

The Appellant’s Position

[25] The appellant provided focused submissions. He argues that the trial judge erred when she concluded that the 7.5 month adjournment between January 23 and September 10, 2015 was “neutral” time. The appellant says that this was delay directly caused by the Crown’s failure to obtain an expert report that addressed the post-driving drinking scenario. The appellant says that the Crown knew that the appellant drank after he drove and, in fact, led evidence to this effect when his statement was filed as an exhibit. As such, the Crown knew that the expert would have to be asked about the post-driving drinking scenario.

[26] The appellant argues that the Crown’s failure to disclose an expert report that included the drinking scenario arising from the appellant’s statement constituted a breach of s. 657.3(3)(b) of the Criminal Code. The appellant maintains that this failure entitled him to an adjournment under s. 657.3(4) of the Code. As such, he argues that the responsibility for the 7.5 months that ensued must be visited on the Crown. He says that this is Crown delay under Morin and not defence delay or an exceptional circumstance under Jordan.

[27] He also argues that, while he did not revive the s. 11(b) application when another delay occurred after the September 10, 2015 ruling, he did not do so because of the trial judge’s articulated views on the lack of prejudice. Now that prejudice is of “no moment” under the Jordan framework, he says that the delay between September 10 and December 18, 2015 should be considered.

[28] Whether applying Jordan or Morin, the appellant maintains that there has been unreasonable delay.

Crown Counsel’s Position

[29] Crown counsel argues that there is 9.25 months of Crown and institutional delay under the Morin framework. Having regard to defence delay, the Crown also maintains that the matter falls well below the Jordan ceiling. As for the adjournment on January 23, 2015, Crown counsel argues that the responsibility for it lies squarely at the feet of the defence. There was no obligation on the Crown to have an expert report that covered off the scenario put. Finally, the Crown maintains that the appellant did not renew his s. 11(b) application after the September 10, 2015 ruling and he should be foreclosed from benefiting from this period of time now.

Analysis

Standard of review

[30] This is a summary conviction appeal that challenges a s. 11(b) ruling. The characterization of periods of time making up the overall delay in a case is reviewable on a standard of correctness. So too is the ultimate decision as to whether there has been unreasonable delay. It is important to remember, though, that the trial judge’s findings of fact are owed deference and are only reviewable on a standard of palpable and overriding error. See: R. v. Schertzer, 2009 ONCA 742, at para. 71; R. v. Konstantakos, 2014 ONCA 21, at para. 5.

The analytical framework

[31] This case was in the system when Jordan was released. Subject to the transitional approach, the new Jordan principles apply: Jordan, at para. 94. The transitional approach requires that these principles be applied in a contextual and flexible way to cases that started under the old Morin framework.

[32] Jordan was released over six months ago now and the structural approach is becoming well known. Central to the approach is a ceiling beyond which unreasonable delay will be presumed. An 18-month ceiling is imposed for trials proceeding in the Ontario Court of Justice. Unreasonable delay is presumed once the ceiling is exceeded, unless the Crown succeeds in rebutting the presumption. The period of time is calculated from charge to the end or anticipated end of trial, minus defence delay.

[33] Defence delay is comprised of either waiver or delay caused solely by the conduct of the defence. The latter is conduct that directly causes the delay or conduct that constitutes a “deliberate and calculated tactic” designed to delay the trial: Jordan, at para. 63. As well, where the Crown and court are ready to proceed, but the defence is not, delay resulting from defence unavailability may be attributed to the defence. At the same time, actions legitimately taken by the defence to respond to charges cannot be categorized as defence delay: Jordan, at para. 64.

[34] By subtracting defence delay from the “total delay”, a “net delay” is arrived upon: R. v. Coulter, 2016 ONCA 704, at para. 35. The net delay is then compared against the ceiling. If it exceeds the ceiling, the Crown bears the onus of rebutting the presumption of unreasonable delay. This can be done by showing exceptional circumstances. These are circumstances that are outside of the Crown’s control. Discrete events and complex cases can constitute exceptional circumstances.

[35] Where the net delay falls below the ceiling, the accused bears the onus of demonstrating why the delay is unreasonable. This can be done by showing that (1) meaningful steps were taken by the accused that demonstrate a “sustained effort” to expedite the trial and or (2) that the case took “markedly longer” than it should have taken: Jordan, at para. 82.

What is the total delay in this case?

[36] The appellant was arrested on September 28, 2013. The information was laid on October 9, 2013. His trial ended on December 18, 2015.

[37] The starting point for calculating delay is when the individual is charged: Jordan, at para. 49; Coulter, at para. 62. This is consistent with prior authority, including R. v. Kalanj, [1989] 1 S.C.R. 1594, at p. 1607, where McIntyre J., for the majority, held that s. 11(b) protects a person “charged with an offence”. A person is charged when “an information is sworn alleging an offence against him”, or when a direct indictment is laid.

[38] In this case, the information was laid on October 9, 2013. This is the start date for the calculation of time. It took just over 26 months to reach the end of trial. The question is whether the calculation of time should stop at the point when the s. 11(b) application was ruled upon. As the appellant chose not to renew his application after the adjournment on September 10, 2015, the Crown maintains that the period of time after this date should not be considered.

[39] Where s. 11(b) is never raised at trial, an appellant will be hard pressed to convince a court to determine the issue for the first time on appeal: R. v. L.G., 2007 ONCA 654, at paras. 43-46. As noted by the court in R. v. Lee (1999), 120 O.A.C. 286, at para. 13, “counsel for the appellant conceded that the issue could not be raised for the first time in this court”. In R. v. Rabba (1991), 46 O.A.C. 120, Arbour J.A. (as she then was) commented upon the concern that arises where a s. 11(b) complaint is made for the first time on appeal. As she said at para. 8: “A proper weighing of the factors which determine whether there has been unreasonable delay should not be done with the sole assistance of transcripts of adjournments.”

[40] In this case, while the appellant raised the issue at trial and obtained a ruling, he did not renew his application when the trial was adjourned for another three months after the ruling. His explanation for failing to do so rests on his view of prejudice. He felt that that the trial judge’s decision that he had not suffered any prejudice as a result of delay was dispositive of any further attempt to raise the issue.

[41] His position is not without some merit. As Moldaver J. noted in Jordan, at para. 34, prejudice had become an “important if not determinative factor” under Morin with long delays sometimes being justified because of the absence of prejudice. While prejudice informs where the ceilings have been set, it has now been removed as an active consideration under the new analytical approach.

[42] Having regard to the old Morin framework, the appellant’s suggestion as to why he did not renew his application has some traction. At the same time, by failing to renew the application, this court is deprived of the trial judge’s findings of fact and analysis regarding the final period of time. Ultimately, I find that even if the period between September 10 and December 18, 2015 is taken into account, there is no unreasonable delay in this case. As such, notwithstanding the deficit created by the absence of reasons regarding the final period of time, in the unusual circumstances here, I am prepared factor this time into the total delay.

[43] The total delay is 26 months and one week.

What is the net delay in this case?

[44] Answering this question requires us to first determine the total amount of defence delay.

In the beginning

[45] On November 28, 2013, counsel could not attend court because he was caught in a jury trial. Had he been there, the judicial pre-trial could have been scheduled. This is clear from the fact that it was scheduled on the next date the matter was before the court. Therefore, the period of time between November 28, 2013 and January 2, 2014 is defence delay. As well, the appellant accepts that he waived s. 11(b) for three weeks between February 24 and March 17, 2014. Combined, these two periods of time constitute a total of eight weeks of defence delay.

The 7.5 month adjournment

[46] This then brings into focus the most controversial aspect of this case, the January 23, 2015 adjournment for 7.5 months. The appellant relies upon s. 657.3(3)(b) of the Criminal Code to argue that if the Crown intended to elicit an opinion about a post-driving drinking scenario, the scenario first needed to be addressed in the expert’s report. He says that the report’s silence on the matter entitled him to an automatic adjournment under s. 657.3(4) of the Code. The appellant maintains that the responsibility for this adjournment falls to the Crown.

[47] Section 657.3(3)(b) requires the Crown to provide the accused, within a reasonable period of time before trial, a copy of a proposed expert’s report and, if no report is prepared, a summary of the opinion anticipated to be given and the grounds on which it is based. (Dr. Corbett’s original report was disclosed almost a year ahead of the trial.) If the Crown fails to comply with the provision, then s. 657.3(4)(a) says that the court “shall” grant an adjournment to allow the other party “to prepare for cross-examination of the expert witness”.

[48] Section 657.3(3)(b) is not designed to require an expert to put every conceivable scenario into her or his report. Indeed, I agree with the trial judge’s observation that it is quite common for an expert to testify about scenarios that are not found in their reports.

[49] Section 657.3(3)(b) exists to safeguard the flow of a criminal trial, ensuring that the accused is not caught off guard by an expert’s testimony. The opening words of s. 657.3(3) support this understanding of the provision: “For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses …”.

[50] Even where a party fails to comply with s. 657.3(3)(b), the aggrieved party does not simply get an adjournment for the asking. An adjournment is not a punishment imposed upon the Crown for failing to comply with s. 657.3(3)(b). An adjournment under s. 657.3(4) is a remedy used to permit a party who has been caught off guard sufficient time to “ prepare for cross-examination of the expert witness [emphasis added]”. While parties will sometimes need time to prepare for the unexpected, they should not need time to prepare for the expected.

[51] In this case, as evidenced in his comments before Sergeant J. and later before the trial judge, the appellant was not caught off guard. While the appellant says that he was under no obligation to be a “good Samaritan” to the Crown, respectfully, this misses the point. While he was not under an obligation to alert the Crown to the post-driving drinking scenario, he was under an obligation to inform himself as to whether it made any difference and, if so, how he intended to approach the matter. He could have done this by directly contacting the Crown expert or consulting with his own expert. Had he done so, he would have learned that even with the consumption of three beers after driving, his projected blood-alcohol content at the time of driving would have been more than twice the legal limit.

[52] Instead of consulting with a toxicologist ahead of trial, the appellant chose to rely on what he thought was the Crown’s failure to have disclosed a complete expert report. He was wrong in this regard. Even if he was right, he was wrong to head into trial relying on the fact that he would get an adjournment for the asking. Even if Dr. Corbett’s report was deficient, the question would have been whether the appellant needed time to prepare for cross-examination. Having anticipated the issue, he should not have needed time. Even if he did, the time available between the close of court on January 23rd and the opening of court on the third day of trial, January 26th, would have afforded him sufficient time.

[53] The trial judge made factual findings about the reasons for the 7.5 month adjournment, including that the appellant was aware that the “post offence drinking scenario was in play and it would hardly be anything that would catch the defence off guard”. She also found that the adjournment was part of “the tactics that [counsel] agreed to and embarked readily upon”. These factual findings are owed deference on appeal. They are well supported by the record and do not constitute palpable and overriding errors.

[54] As it turned out, the 7.5 month adjournment actually resulted from the fact that 1.5 days of court time were lost when the trial was traversed to a new judge because of the appellant’s tactical position. Had the appellant simply prepared to face the post-driving drinking scenario he anticipated the Crown would raise, the trial could have been easily completed in the three days that had been set aside for almost a year. Instead of preparing for the anticipated, the appellant started the trial hoping to capitalize on what he thought would be an automatic adjournment if the issue came up. Given that the adjournment could not help him with his substantive position, all it did was add 7.5 months of delay to the case.

[55] It is important to recall that the right to trial within a reasonable time is not a defence. Nor is it a right that exits for the sole benefit of an accused. It is a shared right. While it is an important one for accused individuals, it is equally important to others, including victims, their families and the public: Jordan, at para. 19. As Moldaver J. held in Jordan, at para. 2, the “Canadian public expects their criminal justice system to bring accused persons to trial expeditiously.”

[56] Efficiency in the criminal justice system is critically important because it is a reflection of the “health and proper functioning” of the system and the “stakes are indisputably high”: Jordan, at para. 3. As explained in Jordan, at paras. 19-27, there are myriad reasons why expeditious trials are vital to the health of the administration of justice. Delays can adversely impact fair trial interests, liberty and security of the person. They can add to the suffering experienced by victims of crime. Delays can also cause witnesses’ memories to fade and add to the anxiety associated with testifying at some undetermined and often undeterminable future date. Delays leave “the innocent in limbo and the guilty unpunished, thereby offending the community’s sense of justice”: Jordan, at para. 25. In fact, they can shake the public’s confidence in the criminal justice system, a confidence that is crucial to the very survival of the system itself and the rule of law. See also: R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1220-21.

[57] In restructuring the analytical approach to s. 11(b), Moldaver J. spoke of a need to shift the culture of complacency toward delay. All justice participants, including the defence, are wrapped in these comments. The defence “cannot benefit from its own delay-causing conduct”: Jordan, at para. 113. All justice participants are expected to “work in concert” to eschew delay. Everyone benefits when delay is avoided: Jordan, at paras. 115-16.

[58] It misconstrues the purpose of s. 11(b) to use it as a sword or to conceptualize it as a defence. All counsel, Crown and defence alike, must take active and meaningful steps to avoid delays. Where counsel are caught off guard by Crown evidence, bearing in mind all of the circumstances, fairness may demand that accommodations be made. Where counsel anticipate issues arising at trial, they have an obligation to prepare for those issues. Nothing short of this approach will protect the administration of justice from the harm created by avoidable delays.

[59] At a minimum, the appellant had an obligation to determine the impact of any potential post-driving drinking on his projected blood-alcohol content at the time of driving. Had he done this, he would have been prepared for the scenario put to the Crown expert and he would have known that the three beers were not a panacea in terms of his projected blood-alcohol content at the time of driving. The 7.5 month adjournment that ensued as a result of the tactics chosen achieved nothing but delay. This is defence delay.

[60] This conclusion is reinforced by the trial judge’s observation that, starting on February 3, 2015, the court had six earlier dates available to continue the trial. The Crown was available for five of them. Yet through the combined schedules of defence counsel, they could not coordinate with the court’s schedule until September 10, 2015. In all of the circumstances, while the trial judge referred to this as “neutral” time under a Morin analysis, with which I agree, the entire 7.5 months is defence delay under a Jordan analysis.

[61] Combined with the earlier eight weeks of defence delay, there is a total defence delay of just less than 9.5 months at the September 10, 2015 mark. This leaves a net delay of just less than 17 months. As such, my comments about the last period of time will be brief.

The September 10, 2015 adjournment

[62] After the s. 11(b) ruling on September 10, 2015, a discussion arose about the fact that a 9-1-1 tape had been provided to the defence in July. While the appellant received the tape, his co-accused said that he had not. The Crown said that the co-accused had failed to pick up the tape.

[63] Based on the content of the tape, the co-accused said that he wanted to re-open his cross-examination of one of the Crown’s civilian witnesses. The Crown unsuccessfully attempted to get the witness to court that day. The Crown’s suggestion that the parties proceed by way of agreed statement of fact was rejected by the co-accused. While the appellant initially said that he did not want to hear further from the witness, and was even contemplating a severance application, he later took the position that he may have some questions for him. There was no further mention of severance.

[64] The trial judge made serious efforts to have the matter come back to be completed in short order. She even said that she was prepared to give up a non-presiding day the following week. While the appellant and Crown were available, the co-accused was not. While everyone was available on October 16, 2015, the appellant was not. He was available for the entire balance of October and on many other dates.

[65] This particular adjournment highlights the difficulties with balancing multiple schedules. In these circumstances, I would attribute only some delay to the appellant. If the net delay exceeded the ceiling in this case, I would have considered this period of time as one that could be appropriately characterized as an exceptional circumstance arising from the complexity of a joint prosecution.

[66] For this final period of time, having regard to all of the circumstances, I would only attribute a period of one month delay to the appellant.

Conclusion on net delay

[67] In total, the net delay is less than 16 months.

Under the ceiling

[68] As the net delay is under the 18-month ceiling, it is presumed reasonable. In these circumstances, the appellant bears the onus of demonstrating why the delay is unreasonable.

[69] His actions, primarily on the first day of trial, do not support the notion that he took sustained efforts to move the trial along. As for the case itself, it took no longer than it should have. It was completed within the timeframe it was anticipated to take. While it was heard over four days, it took about three days in total. While three days will typically be too long for an impaired and “over 80” trial, this case had some additional features. Among other things, there were two accused and neither was behind the wheel when the police found the motor home.

[70] The appellant has not demonstrated why the delay is unreasonable.

Conclusion

[71] There is no error in the trial judge’s approach to the s. 11(b) analysis. She decided the case under Morin. She attributed nine months to institutional delay. Even if this period of time had been pegged at ten months, bearing in mind her conclusion on the 7.5 month adjournment as neutral time, the institutional delay would have fallen within the Morin guidelines.

[72] In the end, whether under Morin or Jordan, there was no unreasonable delay in this case. The appeal is dismissed.

Fairburn, J. Date: January 13, 2017